Tag: EEA Applications

Settled Status for EU Citizens and Family Members in the UK after Brexit

Today, the Home Secretary, Sajid Javid announced more details on the settled status for the EU citizens and their family members. In the official electronic notification, the Home Secretary stated that safeguarding the rights of EU citizens in the UK has always been the first priority and the agreement reached with the EU earlier this year did just that. The rights that EU citizens and their families currently have are protected which include access to healthcare, benefits and pensions.

Away from the negotiations, my team in the Home Office have been working hard to develop the service that you’ll use to get your settled status. This work will continue as we make sure that the system and processes are rigorously tested and meet every requirement ahead of the launch. Sajid Javid

According to the statement, the scheme will open later this year and the Home Office is on track to open the scheme fully by 30 March 2019. The deadline for applications to the scheme will be 30 June 2021.

More details of the suggested scheme including overview, eligibility requirements and application process have been released on the government’s website.

Settled Status Scheme for EU citizens and their family members living in the UK

The scheme will open fully by March 2019. The deadline for applying will be 30 June 2021. You may be able to apply after this date if you’re joining a family member in the UK.

Rights for citizens of Norway, Iceland, Liechtenstein and Switzerland are still being negotiated.

Getting settled status means you can continue to live and work in the UK for as long as you like. It will mean you’re eligible for:

  • public services, such as healthcare and schools
  • public funds and pensions
  • British citizenship, if you meet the requirements

Full details of the scheme are still subject to approval by Parliament.

Eligibility

To be eligible for settled status, you’ll need to:

  • be an EU citizen, or a family member of an EU citizen
  • have been living in the UK continuously for 5 years (‘continuous residence’)
  • have started living in the UK by 31 December 2020

If you’ve lived in the UK for less than 5 years, you’ll generally be eligible for ‘pre-settled status’ instead.

If you’re a non-EU citizen, you will need to show your relationship to an  EU citizen living here.

Continuous residence

Continuous residence means you’ve been in the UK for at least 6 months in each of those 5 years, except for:

  • one period of up to 12 months for an important reason (for example, to work or study)
  • compulsory military service

If you will not have 5 years’ continuous residence when you apply

You’ll generally get ‘pre-settled status’ instead. Pre-settled status means you can stay in the UK for a further 5 years. You can live and work here, and will have access to public funds and services on the same basis as you do now.

Once you have 5 years’ continuous residence you can apply for settled status.

Applying for settled status

The scheme will open fully by March 2019.

The deadline for applying will be 30 June 2021. You may be able to apply after this date if you’re joining a family member in the UK.

The application form will be online. You’ll be able to get support over the phone or in person if you need help doing things online.

Necessary Documents

When you apply, you’ll need proof of:

  • your identity
  • your residence in the UK, unless you have a valid permanent residence document or valid indefinite leave to remain
  • your relationship to a family member from the EU living in the UK, if you’re from outside the EU

Fees

The fee to apply (subject to approval by Parliament) will be:

  • £65 if you’re 16 or over
  • £32.50 if you’re under 16

It’ll be free to apply if:

  • you already have valid indefinite leave to remain or a valid permanent residence document
  • you’re applying to move from pre-settled status to settled status
  • you’re a child in local authority care

There will be support for the vulnerable and those without access to a computer.

Legal Assistance

 

New Fees: British Passport Applications
How to Apply for British Passport Online 
Apostille and Document Certification in London
Employment Rights in the UK

 

For expert advice and assistance in relation to your particular case and relevant immigration law requirements, please contact our immigration lawyers on tel. +44(0)20 7822 8535, mobile: 07305848477 or by e-mail: contact@sterling-law.co.uk or via our online appointment booking form.

Sterling Law sets precedent with Baigazieva [2018] EEA Retained Rights Case in the Court of Appeal

Baigazieva [2018] EWCA Civ 1088 is a case of Sterling Law that is an important new precedent on EEA retained rights of residence. The decision, given by Singh LJ of the Court of Appeal, has served a positive outcome to the appeal brought from the Upper Tribunal against the Home Office’s contention that the Appellant’s former spouse was not exercising treaty rights at the point of their divorce.

In doing so, the decision has also shed light by giving a new direction to a previously ambiguous interpretation of law under Article 10(5) of the EEA Regulations 2006, now revoked and replaced by EEA Regulations 2016.

Background: EEA Retained Rights of Residence

The Appellant, Ms. Baigazieva, applied for retained rights of residence on the basis that she was a former family member of an EEA national who was exercising treaty rights at the time of divorce after which she was residing in the UK as a qualified person.

The Home Office, notwithstanding the fact that she was previously issued a residence card as a family member of a qualified person, refused the application on the grounds that she did not provide sufficient evidence that she has retained a right of residence following divorce from an EEA national in accordance with Regulation 10(5) of the Immigration (EEA) Regulations 2006. Inclusive to the the issue of sufficient evidence not being provided, was the contention that the former spouse of the Appellant was not exercising treaty rights at the point of divorce.

Legal Issue

As such, the appeal turns on the correct interpretation of Regulation 10(5) of the Immigration (European Economic Area) Regulations 2006 (“the 2006 Regulations”). On 9 December 2015, when the Secretary of State the appellant’s application for a residence permit as a family member with a retained right of residence, the 2006 Regulations were still in force. However, on 1 February 2017, the 2006 Regulations were revoked and replaced by the Immigration (European Economic Area) Regulations 2016 (subject to transitional provisions) (“the 2016 Regulations”).

This case has set a much-needed precedence for both ongoing retained rights of residence applications and appeals, as well as applicants hoping to apply for retained rights of residence as former spouses of an EEA national exercising treaty rights in the UK.

This is a right that has subsisted since 2004 under the Directive of the European Parliament and of the Council of April 2004 (Directive 2004/38/EC) which ordains that it is a right of citizens of the Union and their family members to move and reside freely within the territory of the Member States. Article 13(2) of the Directive provides for third country family members of EU citizens to retain their right to reside in an EU Member State in the event of divorce and is supplemented by Regulation 10 of the EEA Regulations 2006 (and now 2016) which lays out the conditions under which a family member may retain a right of residence.

Accordingly, subsection (5) of Regulation 10 provides that a person satisfies the conditions in this paragraph if –

  • He ceased to be a family member of a qualified person on the termination of marriage or civil partnership of the qualified person;
  • he was residing the United Kingdom in accordance with these Regulations at the date of the termination;
  • he satisfies the condition in paragraph (6)
  • either –
  • prior to the initiation of the proceedings for the termination of the marriage or the civil partnership the marriage or civil partnership had lasted for at least three years and the parties to the marriage or civil partnership had resided in the United Kingdom for at least one year during its duration.

Until this decision was made an ambiguity persisted on the interpretation of the law under Regulation 10(5) in which it was unascertained whether a third country national ex-spouse is required to show that their former spouse was exercising Treaty rights in the host Member state at the time of their divorce (note that it is at the time of the divorce and not having acquired the divorce, the decree absolute) in order to retain a right of residence under Article 13(2) of Directive 2004/38/EC. This is despite the Court of Justice of the European Union (CJEU) giving an answer to that question in 2014 in the context of domestic abuse, which was that the EU spouse, as the qualified person, must reside in the host member state until the date of the commencement of the divorce proceedings.

Thereby, the general implication here was that it was not necessary for the EU spouse to reside in the host Member State until the divorce itself was granted. Though at the EU level, such a determination has not, until this Baigazieva [2018] decision, been made in the UK despite the Secretary of State admitting that the issue has arisen in several proceedings in recent years without definitively being resolved.

Success – SSHD Concedes Appeal

As such, the Secretary of State for the Home Office not only conceded the appeal in the public interest so that the court to give a substantive judgement on the issue of law which arises but the this appeal also prompted the SSHD to accept that a third country national, or order to retain a right to reside in the UK in reliance of Regulation 10(5), does not need to show that their former EEA spouse exercised treaty rights as a “qualified person” until the divorce, the decree absolute, itself. Rather, it is sufficient to show that the former EEA spouse exercised treaty rights until divorce proceedings were commenced.

Singh LJ, the presiding judge of this Upper Tribunal appeal delivered a substantive judgment and concluded that the Upper Tribunal Judge erred in the approach she took to Regulation 10(5) of the 2006 Regulations. Ultimately, this judgement which finds that a third country national has to show their former spouse was a qualified person at the point of the initiation of divorce proceedings rather than at the point of divorce, now sets precedent for succeeding cases on the same matter.

The legal representatives of this case were Counsel, Agatha Patyna, from Doughty Street Chambers acting for the Appellant upon the instructions of the Appellant’s legal representative, Nadia Pylypchuk (as supervised by Ruslan Kosarenko) from Sterling Law.

Immigration Assistance

For expert advice and assistance in relation to your particular immigration case, please contact our immigration lawyers on Tel. +44(0)20 7822 8535, Mobile / Viber: +447463382838, by e-mail: contact@sterling-law.co.uk or via our online appointment booking form.

 

 

 

Rights of Former Husband of an EEA National Restored after Refusal and Revocation of Residence Card

Our client, a citizen of Ukraine, applied for a retained right of residence on the basis that he is a former husband of an EEA National who was exercising treaty rights at the time of divorce and subsequent to divorce he has been residing in the United Kingdom as a qualified person.

The marriage lasted for three years and both the client and his ex-wife have been residing in the United Kingdom.

The reason for the refusal was based on insufficient evidence of retaining rights of residence following the divorce from the wife according to regulation 10(5) of the Immigration (EEA) Regulations 2006.

In particular, the Home Office was concerned as to whether the ex-wife’s business was genuine and economically active. Based on this reason the Home Office revoked the residence card of the client.

Following the decision of the Home Office, the client instructed Sterling and Law Associates LLP to lodge the appeal on his behalf based on the breach of the rights under the Community Treaties, s 84(1)(d) Nationality, Immigration & Asylum Act 2002. In addition, it was claimed that the decision of the Home Office was unlawful under section 6 and 8 of the Human Rights Act 1998.

During the appeal hearing, the Immigration Judge considered all the evidence and submissions made by Sterling & Law Associates LLP on behalf of the client and noted that the sole issue in the matter was whether the Appellant’s ex-wife was exercising her treaty rights at the date of divorce.

The Judge confirmed that concerns as to the discrepancies in the documents of the ex-wife’s company as a genuine trading business were not sufficient to justify the Home Office’s position.

The appeal was allowed under Article 8 of the ECHR on the human rights grounds.

The casework in this successful appeal case was managed by the Immigration lawyer, Oksana Demyanchuk, who ensured that our client can continue his stay in the United Kingdom in accordance with his retained rights.

Immigration Assistance

For expert advice and assistance in relation to your particular immigration case, please contact our immigration lawyers on Tel. +44(0)20 7822 8535, Mobile / Viber: +447463382838, by e-mail: contact@sterling-law.co.uk or via our online appointment booking form.

Brexit negotiation update for EU citizens

An official update has been circulated by the Home Office as Brexit negotiations continue. This is the latest information on the status of EU citizens in the UK.

During the week of 19-23 March 2018, the UK and the EU have reached an agreement on what happens during the period immediately after Brexit, known as the implementation period. This is important as it will give citizens and businesses on both sides time to adjust before a new relationship with the EU is agreed.

So, what has been agreed so far and how will you be affected?

Brexit: EU citizens currently in the UK

The agreement on citizens’ rights reached in December has now been formalised into a draft Treaty text, meaning it is in the right form to be written into law.

The agreement means that if you are an EU citizen living in the UK before the UK leaves the EU on 29 March 2019 you will be able to continue to live and work in the UK. Your rights to healthcare, work arrangements and access to benefits will continue. Also, your existing close family members will be able to join you in future in the same way that they can now. You can read more here: Status of EU citizens in the UK: what you need to know.

From this week, EU citizens in the UK have been seeing digital adverts encouraging you to ‘stay informed’. The activity is part of an ongoing effort by the Government to build awareness about the agreement to protect EU citizens’ rights ahead of the roll-out of the settlement scheme.

Settlement scheme

If you are an EU citizen or family member already living in the UK, a user-friendly scheme to enable you to secure your settled status here will open later this year. But there is no rush – you will have up until 30 June 2021 to make your application.

The UK government will provide more information on the scheme and how to apply in the coming months.

Implementation period

The agreement we reached with the EU this week extends the citizens’ rights protections above to include EU citizens and their family members arriving in the UK during the implementation period (from 30 March 2019 to 31 December 2020). This ensures that those planning to come to the UK after March next year know what the arrangements will be. During this time, new arrivals will need to register through a new Home Office registration scheme after three months in the UK.

More information is available at UK leaving the EU: what you need to know.

Successful appeal against refusal to issue Residence Card to Spouse of EEA national

The case resolved around a refusal by the Secretary of State (Respondent) to issue an EEA Residence Card to a Georgian national (Appellant) who is a spouse of an EEA national.

The reason for the refusal was that the Respondent was not satisfied that the relevant EEA national exercised Treaty rights.

The Home Office argued that there were discrepancies in evidence of work, relying on the case of Begum Pakistan [2011] UKUT 275. However, the Judge did not accept the Home Office’s argument, finding that the evidence provided was sufficient, and that the witness statements were credible, including the ones describing the EEA national’s employment circumstances and history in the UK.

As a result, the Appellant’s spouse was determined to be a worker for the purposes of the EEA Regulations, and the Appellant has successfully discharged the burden of proof.

Accordingly, the appeal was allowed.

UK Visa Fees

UK Visa Fees from 6 April 2018

A number of changes to the UK visa fees will come into effect from 6 April 2018.

The key changes to the Home Office fees are outlined below:

  • Increased UK visa fees on growth routes (work, study and visit) by 4%.
  • Increased fees on most non-growth routes (nationality, settlement, family) and most associated premium services by 4%.
  • The fee for the overseas optional ‘Priority Visa’ service for entry clearance will increase by 15%.

The government has not made any changes to fees under the sponsorship system. UK visa fees for entry clearance to enter the Channel Islands and Isle of Man will rise in line with fee changes seen in the rest of the UK.

UK visa fees for all applications made from outside and within the UK

TYPE OF APPLICATION

FEE, GBP 

Outside / Inside UK before 6 April 2018

FEE, GBP

Outside / Inside UK after 6 April 2018

Tier 1 Investor £1,561 £1,623
Tier 1 Entrepreneur £982 / £1,228 £1,021 / £1,277
Tier 1 Graduate Entrepreneur £349 / £474 £363 / £493
Tier 2 – 3 years £587 / £677 £610 / £704
Tier 2 – 5 years £1,174 / £1,354 £1,220 / £1,408
Sponsorship License Application  £536 £536
Tier 4 £335 / £457 £348 / £475
Tier 5 £235 £244
Family Settlement (Spouse Visa) £1,464 / NA £1,523 / NA
FLR (FP, O, M, S) NA / £993 NA / £1,033
MN-1 (Registration child – British Citizenship) £973 £1,012
AN (Naturalisation – British Citizenship) £1,282 £1,330
Indefinite Leave to Remain (Settlement) £1,464 / £2,297 £1,523 / £2,389
Other dependant relative £3,250 / NA £3,250 / NA
Visit visa – short up to 6 months £89 / NA £93 / NA
Visit visa – long up to 2 years £337 / NA £350 / NA
Visit visa – long up to 5 years £612 / NA £636 / NA
Visit visa – long up to 10 years

£767 / NA

 £798 / NA
EEA Applications (all forms)

free / £65

free / £65

A full list of the new UK Immigration, Visa and Nationality Fees can be found on www.gov.uk

Other relevant changes and updates

NHS Immigration Health Surcharge will increase to £400 a year in 2018

New Fees 2018: British Passport Applications

Deadline for employers (Tier 2 sponsors) – 5 April 2018

New Online Application System launched for Tier 2 migrants and PBS dependants

Changes to the Immigration Rules 2018

Immigration Assistance

For expert advice and assistance in relation to your particular case, applicable fees and relevant immigration law requirements, please contact our immigration lawyers on Tel. +44(0)20 7822 8535, Mobile/Viber: 074 6338 2838, by e-mail: contact@sterling-law.co.uk or via our online appointment booking form.

Successful appeal against a refusal to grant permanent residence on the ground of marriage of convenience

Sterling and Law Associates LLP have been successful in appealing a refusal to grant permanent residence to a former spouse of a EU citizen. The Secretary of State (Respondent) refused to grant permanent residence to a Ukrainian national who is a former spouse of a EU citizen because it was argued that the marriage was one of convenience.

The major reason it was deemed to be a marriage of convenience was that the Appellant had a post-divorce relationship with a woman and their child, whilst in a relationship with the EU citizen concerned. Moreover, the Appellant failed to give accurate and consistent responses to questions at the interview conducted by an Immigration Officer.

Marriage of convenience definition

The Judge carefully considered what is meant by “a marriage of convenience”, concluding that a marriage is considered one of convenience if it is contracted for the sole and predominant purpose of gaining an immigration advantage. It was noted that it cannot be considered a marriage of convenience simply because it brings such an advantage.

Even though the Appellant continued his relationship with previous spouse at the time, the Judge found that there was no suggestion they lived together at the time he was in a relationship with a EU citizen.

In fact, there was a significant amount of documentary evidence showing that the marriage was genuine.

UK’s proposed administrative procedures for EU citizens obtaining settled status

Today, on 7 November 2017, the Home Office circulated a public update on the administrative procedures underpinning the UK’s proposals for a streamlined application system for EU citizens obtaining settled status.

The text of the Home Office’s circular is quoted below.

“Today, the Government has set out further details of how the new settled status scheme for EU citizens and their family members will operate as the UK leaves the EU.

In a technical document sent to the European Commission as part of the negotiations, the Government reiterates how the new system will be streamlined, low-cost and user-friendly, with EU citizens consulted on its design.

EU citizens applying to stay in the UK after Brexit will have plenty of time, up to two years after the UK has left the EU, to obtain settled status. Those applying to stay in the UK after we leave the EU will not have their applications refused on minor technicalities and caseworkers considering applications will exercise discretion where appropriate. The new system will minimise the documentary evidence required and EU citizens will not be required to provide fingerprints as part of the application process.

Decisions will be based solely on the criteria set out in the Withdrawal Agreement, with no discretion for other reasons for refusal. EU citizens will also be given a statutory right of appeal, in line with their current rights through the Free Movement Directive, if their application is unsuccessful.

The Prime Minister has been clear that safeguarding the rights of EU citizens living in the UK and UK nationals in Europe is the first priority for negotiations and she said last month that an agreement is within touching distance.

Negotiation between the UK and EU is continuing and the next talks will take place this week on 9 and 10 November. We will continue to keep you updated on further progress.”

Prime Minister pledges to secure simple process to swap current EU Permanent Residence status for UK settled status

Today, on 19 October 2017, ahead of the EU Council meeting, Theresa May wrote directly to EU citizens in the UK. In her message, the Prime Minister pledged to make it as easy as possible for EU citizens to remain in the UK after Brexit. She insisted that the application process for settled status in the UK would be “streamlined” and the cost “as low as possible”. For any EU citizen who holds Permanent Residence status under the current EU regulations, there will be a simple process introduced to swap their current status for the UK settled status.

Full text of the Prime Minister’s message is quoted below.

“As I travel to Brussels today, I know that many people will be looking to us – the leaders of the 28 nations in the European Union – to demonstrate we are putting people first.

I have been clear throughout this process that citizens’ rights are my first priority. And I know my fellow leaders have the same objective: to safeguard the rights of EU nationals living in the UK and UK nationals living in the EU.

I want to give reassurance that this issue remains a priority, that we are united on the key principles, and that the focus over the weeks to come will be delivering an agreement that works for people here in the UK, and people in the EU.

When we started this process, some accused us of treating EU nationals as bargaining chips. Nothing could have been further from the truth. EU citizens who have made their lives in the UK have made a huge contribution to our country. And we want them and their families to stay. I couldn’t be clearer: EU citizens living lawfully in the UK today will be able to stay.

But this agreement will not only provide certainty about residence, but also healthcare, pensions and other benefits. It will mean that EU citizens who have paid into the UK system – and UK nationals into the system of an EU27 country – can benefit from what they’ve put in. It will enable families who have built their lives together in the EU and UK to stay together. And it will provide guarantees that the rights of those UK nationals currently living in the EU, and EU citizens currently living in the UK will not diverge over time.

What that leaves us with is a small number of important points to finalise.  That is to be expected at this point in negotiations. We are in touching distance of agreement.  I know both sides will consider each other’s proposals for finalising the agreement with an open mind. And with flexibility and creativity on both sides, I am confident that we can conclude discussions on citizens’ rights in the coming weeks.

I know there is real anxiety about how the agreement will be implemented. People are concerned that the process will be complicated and bureaucratic, and will put up hurdles that are difficult to overcome. I want to provide reassurance here too.

We are developing a streamlined digital process for those applying for settled status in the UK in the future. This process will be designed with users in mind, and we will engage with them every step of the way.  We will keep the cost as low as possible – no more than the cost of a UK passport. The criteria applied will be simple, transparent and strictly in accordance with the Withdrawal Agreement.  People applying will not have to account for every trip they have taken in and out of the UK and will no longer have to demonstrate Comprehensive Sickness Insurance as they currently have to under EU rules.

And importantly, for any EU citizen who holds Permanent Residence under the old scheme, there will be a simple process put in place to swap their current status for UK settled status.

To keep development of the system on track, the Government is also setting up a User Group that will include representatives of EU citizens in the UK, and digital, technical and legal experts. This group will meet regularly, ensuring the process is transparent and responds properly to users’ needs. And we recognise that British nationals living in the EU27 will be similarly concerned about potential changes to processes after the UK leaves the EU.  We have repeatedly flagged these issues during the negotiations. And we are keen to work closely with EU Member States to ensure their processes are equally streamlined.

We want people to stay and we want families to stay together. We hugely value the contributions that EU nationals make to the economic, social and cultural fabric of the UK. And I know that Member States value equally UK nationals living in their communities. I hope that these reassurances, alongside those made by both the UK and the European Commission last week, will provide further helpful certainty to the four million people who were understandably anxious about what Brexit would mean for their futures.”

Safeguarding the status of citizens: negotiation update from the Home Office

On 13 October 2017, the Home Office circulated an update following the fifth round of the negotiation between the EU and UK.

Full text of the circular: 

“We are closer to agreeing all elements of the rights of EU citizens living in the UK and the reciprocal rights of UK citizens living in the EU – but there is more discussion required.

On key issues, such as the broad framework of residence rights for EU citizens and their family members, social security entitlements and reciprocal healthcare, the UK and EU have largely reached agreement.

On remaining areas, both the UK and EU are focussing on providing certainty for citizens as quickly as possible. Discussions this week have narrowed the focus to the key remaining issues for negotiations.

The UK has also provided further information on its settled status scheme to be introduced next year. It will be streamlined, digital and low cost. As we have said previously, you do not need a document now to prove that you are resident in the UK.

For those who already have EU permanent residence documents the process will be very straightforward, with greatly reduced or zero cost to applicants to update their status under the new scheme.

The talks also explored ways to fulfil the Prime Minister’s commitment to implement the Withdrawal Treaty fully into UK law, ensuring consistent interpretation through UK courts being able to take into account CJEU judgements.

We want to reach agreement on all areas as soon as we can, providing certainty for citizens.

The EU Council is meeting next week to discuss whether or not there has been sufficient progress in the current talks to move onto discussion of wider issues. Whatever the EU Council’s decision, safeguarding the status of EU citizens in the UK and UK nationals in the EU will remain a priority for the UK. As the Prime Minister said this week, “we want you to stay”.

Our negotiating position continues to be based on the proposal we outlined in June: safeguarding the position of EU citizens in the UK and UK nationals in the EU, withupdates provided as the negotiations progress.”