Tag: British Citizenship

Supreme Court clarifies meaning of “reasonableness” and “unduly harsh” in children’s cases

An interesting judgment was handed down in KO (Nigeria) and Others v Secretary of State for the Home Department [2018] UKSC 53 where the question of “reasonableness” and “unduly harsh” when assessing the effect of deportation on a child was answered.

It has been clearly set out in s117C of the Immigration Act 2014 that it will be in the public interest for foreign criminals to be deported, the more serious the offence the higher public interest. The prime question is – will it be “unduly harsh” to deport a qualifying child  (child with more than 7 years of residency in the UK) of the foreign criminal? It was held that the Tribunal should not take into account parental misconduct but should carry out a more child-focused assessment. The phrase “unduly harsh” requires to focus on a more serious impact on the child, an impact that is severe. This essentially brings beneficial consequences because a child should not be held responsible for the conduct of the parent.

S117(6) of the Immigration Act 2014 focuses on those who are not liable to deportation. It is set out that the public interest does not require a removal so long as the person is a parent of a qualifying child and it would not be reasonable for the child to leave the United Kingdom. The same approach of assessing “unduly harsh” should be used to assess “reasonableness” namely the criminal or misconduct of the parent should not be taken into account.

It is enlightening to see the court provide a clear assessment that portrays the importance of the principle that children should not be held responsible for the conduct of their parents. The case of KO provides reassurance to families and properly promotes the best interest of the child.

Adult dependent relative

One of the strongest misconception related to immigration is to assume that only direct family members can apply for Family visa to the United Kingdom. Direct family members usually imply fiancé, spouse, child, parent. However, according to the UK Immigration regulations, a person can apply for Family visa if he is ‘an adult person coming to the UK to be cared for by a relative’. Care can be provided by such relatives as a parent, grandchild, brother, sister, son, daughter or others who are living in the UK.

Certainly, there is a number of requirements applied to the caregiver in the UK, namely:

  • to be living in the UK permanently;

  • to be a British citizen;

  • to be settled in the UK;

  • to have refugee status or humanitarian protection in the UK.

Adults who are eligible for this type of visa will have to prove to they are an essential need for long-term care due to a serious health condition, disability or advanced age. One of the most important requirements for the applicant is that he is not able to receive such treatment in his home country because it is not available or not affordable. However, one limitation for the applicant is applied – he cannot claim public funds for at least 5 years period. It means that the applicant will not be able to pretend to most benefits, tax credits or disability living allowance that are paid by the state. This is the Receiving party (British caregiver) who is taking responsibility for the applicant in all financial matters. To apply for Family visa as an adult dependent relative, the Applicant must be located outside the UK and the age must be 18 or over. If the paperwork was done correctly and the applicant was lucky enough to obtain a family visa as an adult dependent relative, his stay in the UK is considered as unlimited, as long as he joined British family living in the UK without a breach of continuity.

It should be noted that the application process is rather complex, which requires much attention and knowledge. The applicant will have to prepare not only his personal information consisted of at least 16 documents but also nearly the same amount of documents for his Receiving party not including proof of relationship with the British caregiver. The best way to cope with the paperwork is to ask an experienced lawyer for legal assistance. This way, the applicant will be ensured that all paperwork is completed correctly, which increases chances for a positive result in application consideration. Sterling Law highly recommends requesting legal assistance from qualified and licensed lawyers, who have long-term practice in immigration law and will be able to find the right solution in any unpredicted circumstances.

Success Under the new Windrush Scheme

Sterling Law has been consistently fighting against the cruelty of the government’s immigration policy and has come headstrong in the many cases we have fought. We are thus very proud of our involvement in the Windrush cases bought to us and have successfully assisted our client obtain British Citizenship through the new Windrush Scheme (introduced on 24 May 2018).

Introduction –  WINDRUSH SCANDAL

In the past couple of months there has been much controversy surrounding Windrush, what it is, what is the nature of the scandal that has ensued, and why the government has been at the very centre of the Windrush scandal that has been so problematic and contrary to fundamental human rights.

Article 1 of the Universal Declaration of Human Rights establishes this fundamentality with clear resonance where all human beings are born free and equal in dignity and rights.

Article 15, which states that everyone has a right to nationality also becomes intimately engaged upon the issues of the government’s Windrush scandal.

Windrush or rather the “Windrush Generation” refers to migrants who were invited to the UK between 1948 and 1971 from the Caribbean on aboard a ship called ‘MV Empire Windrush.’ These people were brought to the UK to work to address labour shortages brought by the destruction of the Second World War. As such, this scandal is the epitome of Home Office brutality, where not only were members of the Windrush generation(s) told they were here illegally despite having lived and worked in the country for decades, the Home Office has also been criticised for the mistreatment of retirement-age citizens of the Windrush generation who have been detained,  made homeless, sacked or denied benefits and NHS treatment because they have struggled to prove they are British. This is all notwithstanding an even greater scandal that the Home Office were alleged to have destroyed Windrush landing cards, thereby, destroying critical evidence enabling one to prove legal entry into the UK.

After a series of political setbacks and changes to the position of the Secretary of the Home Department because of this scandal, the government, in May 2018, introduced new legislation that now enables the government to appropriately process citizenship applications for this generation – free of charge.

OUR CASE

Our client came to us to reassert his eligibility for British citizenship as a member of the Windrush generations. Our client first arrived in the UK on 12 July 1967 from Barbados by being included in his mother’s passport. He stayed to reside in the UK ever since that date, working, earning and paying taxes the same as any British citizen. As such having arrived from the Caribbean prior to 1973, he was the child (under 18) of a parent who came to the UK on MV Empire Windrush between 1948 and 1973.

Sterling Law team had taken on this case with much vigour and helped this client to obtain free citizenship from the British government, a right he was duly owed after living in the UK for decades as equal to any other British citizen residing in the country.

 

Legal Assistance in the UK

For expert advice and assistance in relation to your particular case and relevant immigration law requirements, please send your enquiry by e-mail: contact@sterling-law.co.uk or via our online appointment booking form.

May’s proposal – Analysis of the policy paper on the safeguarding the position of EU citizens in the UK and UK nationals in the EU

The recent proposal of Theresa May from June 26th, 2017 has been quoted as a ‘generous offer’ to EU citizens offering everyone who had acquired permanent residence a new ‘settled status’.

 

At the face value, it appears to be a good deal, however when one reads the small print it becomes apparent that there is no value in the offer, and it lacks the certainty that Theresa May continuously refers to. The offer has come after the EU Council Decision of 22nd May proposing their policy on safeguarding the position of EU citizens in the UK and UK nationals in the EU, therefore both sides have now adopted their position. However, the UK’s offer is nowhere close to what EU would like to secure as a part of the exit deal.

 

The Government website provides a short summary of their ‘promise’.

 

“Since the result of the referendum last summer, the UK Government has made it absolutely clear how important it is that we secure as early as possible both the rights of EU citizens in the UK and UK nationals in EU member states. We are now seeking to provide EU citizens with certainty about their future by publishing a policy paper which sets out our offer to them.“

 

Theresa May has since triggering Article 50 made it clear that she wants nothing else but to provide the certainty for all EU citizens in the UK and for those Brits living in the Member States. However, the proposal offers no certainty and is lacking definitive answers and dates.

 

The UK continues to affirm that the rights of the EU nationals are protected and are to be complied with under the EU law until the official day of Brexit.

However, this gives little certainty as to the future rights of over 3 million EU citizens living in the UK even though the UK has proposed a new streamlined process for the European citizens to register in order to gain their new ‘settled status’ as per the generous offer of Theresa May.

 

This online application will apply to all EU citizens who have been continuously living in the UK for over 5 years. This requirement is the same as under current EU law where those with over 5 years of residence can apply for a document certifying permanent residence. Moreover, since the criteria that will apply are national, not based on EU law, the calculation of this period might differ. The proposals says ‘The type of application you’ll need to make will depend on your circumstances, when you moved to the UK and how long you’ve lived here’. The questions arise in terms of what type of circumstances an EU citizen needs to have in order to be able to stay?

 

While the UK promises to make the process as streamlined as possible for the EU citizens who already have the Permanent Residence Status, they will still need to apply for ‘settled status’ after Brexit in order to be able to remain in the UK. The UK position is that a document certifying permanent residence may mean nothing in the future. What is the reason for this? Does it mean that the future criteria will be certainty stricter?

 

Moreover, why the current permanent residence document under free movement rules is not sufficient to prove (for example, to employers or public service providers) that you have permission to continue living and working legally in the UK after Brexit. It seems that the criteria that are to be applied for the new ‘settled status’ will be much more stricter than under EU law if the Home Office cannot respect the now issued documents certifying permanent residence rights.

 

Further questions arise as to the cost of the new ‘settled status’.

Theresa May refers to a ‘reasonable’ cost but under the current British Immigration Rules the fee for indefinite leave to remain which is equivalent to the ‘settled status’ is set at £2,297. Will this be the price the EU nationals would have to pay in order to stay?

 

The offer gives some consideration to those citizens who will not qualify for ‘settled status’ as they will not complete their 5 years period before the ‘cut-off date’. However, nowhere in the proposal the date is mention. It may be the date of triggering Article 50 or the Brexit Day, but it could also potentially be historic.

If Theresa May wanted to give certainty to EU citizens she would have set the ‘cut-off date’. Those EU citizens who arrived and became resident before [un]specific date but who have not accrued five years’ will be able to apply for a temporary status. Moreover, those EU citizens that arrive after the [un]specified date will be allowed to remain in the UK at least temporary and may become eligible, however there should not have expectations of guaranteed settled status.

The proposal mentions ‘People who arrive after the cut-off date will be able to apply for a permission to remain after the UK leaves the EU, under the future immigration arrangements for EU citizens’.

What are the future immigration arrangements? Where is the certainty that Theresa May was offering?

 

The most troublesome part of the proposal is the lack of consideration for a Non-EU family members of EU nationals. What will happen with them since they no longer be able to live in the UK under the more lenient regulations of the EU. Those Non-EU nationals who have divorced their EU partners may also not be eligible to stay. The offer also fails to consider whether a UK citizen who currently is residing in Spain will retain their full free movement rights to move to Germany for example in the future.

 

Moreover, there is also no certainty as to what the ‘grace period’ will be for the EU citizens to apply for their new status. This will ‘be confirmed during negotiations’ and ‘if you haven’t received a document confirming your new immigration status by the end of this [again unspecified] period you will no longer have permission to remain in the UK. What if some EU citizens do not meet their future immigration requirements of which we have no mention whatsoever?

 

The UK offer fails to discuss the judicial enforcement, and while the EU wants the rights of EU nationals to be enforced by the Court of Justice of the European Union (CJEU), and the rules in the withdrawal agreement in accordance with pre-Brexit case law of the Court, the UK rules out the jurisdiction of the CJEU.

 

Much of the proposal uses words like ‘seek to ensure’ or ‘akin’ which does not by definition refer to certainty. It is clear that the UK position indisputably offers worse terms both for EU citizens in the UK and UK citizens in the EU. The EU proposal asked for the permanent residence documents to be respected without the need of ‘transferring’ of the status.

 

While the UK will exempt people from the requirement to have Comprehensive Sickness Insurance, it has been argued that the current UK law breaches EU law anyway. Therefore, it may seem like a ‘generous offer’ but in reality is nowhere close.

 

The proposal also is silent on British Citizenship, it does not mention anywhere how a ‘settled person’ can acquire British citizenship in the future. It only mentions that it will be possible. Does it mean that the criteria will be different and/or more expensive to those currently under EU law?

 

At the moment, it seems that the only way to completely guarantee your continued right to live and work in the United Kingdom is to become a British citizen. In order to do this, the first step is to acquire Permanent Residence.  Although, becoming a British citizen may also be a disadvantage for some nationals or if you have non-British family members living with you in the UK who are relying on your status under EU law. While, we are still awaiting a decision of CJEU in Lounes, the Advocate-General has said that non-EU nationals may be given the right to reside in a Member State in which an EU family member lived before the family member acquired the nationality of that country. However, since the UK wants to rule out the jurisdiction of the CJEU, there would be little time to benefit from any positive upcoming decision.