Tag: EU

Brexit Update: EU Settlement Scheme presented to Parliament and will come into force on 28 August 2018

Statement of changes to the Immigration Rules introducing new EU Settlement Scheme has been presented to Parliament on 20 July 2018 and will come into force on 28 August 2018 for the purposes of initial trial.  

This Statement of Changes in Immigration Rules introduces a new Appendix EU to the Rules to provide for applications by resident EU citizens and their family members for leave to remain in the United Kingdom under the EU Settlement Scheme.

Following the Government’s Statement of Intent on the EU Settlement Scheme, released on 21 June 2018, the Procedure on Biometric Enrolment and the Immigration and Nationality (Fees) (Amendment) (EU Exit) Regulations 2018 were also laid before the Parliament.

EU Settlement Scheme under new Appendix EU

Appendix EU will provide a basis on which resident EU citizens and their family members, and the family members of certain British citizens, can apply for leave to remain in the UK under UK immigration law.

Where resident EU citizens and their family members are concerned, this is in line with the draft Withdrawal Agreement with the European Union published on 19 March 2018 and will not affect their existing rights derived from EU law.

The EU Settlement Scheme will provide the mechanism for resident EU citizens and their family members, and the family members of certain British citizens, to apply on a voluntary basis for the UK immigration status which they will require to remain in the UK beyond the end of the planned post-exit implementation period on 31 December 2020.

More details on the settled status for the EU citizens and their family members

Effective Date & Trial

Appendix EU will come into force on 28 August 2018, for the purposes of an initial trial of the EU Settlement Scheme.

The trial  will involve the participation on a voluntary basis of:

  • persons on the payroll of the 12 NHS Trusts, and
  • enrolled students and persons on the payroll of the three Universities (Liverpool Hope University,
    Liverpool John Moores University, and The University of Liverpool).

The Immigration and Nationality (Fees) (Amendment) (EU Exit) Regulations 2018 will also come into force on 28 August 2018. The EU Settlement Scheme will be rolled out on a phased basis from late 2018.

The scheme will be fully open by 30 March 2019.

EU Settlement Scheme Provisions

  • EU citizens and their family members who, by 31 December 2020, have been continuously resident in the UK for five years will be eligible for ‘settled status’ (indefinite leave to remain in the UK).
  • EU citizens and their family members who arrive by 31 December 2020, but will not by then have been continuously resident in the UK for five years, will generally be eligible for ‘pre-settled status’ (five years’ limited leave to remain in the UK), enabling them to stay until they have reached the five-year threshold. They can then also apply for settled status.
  • Close family members (a spouse, civil partner, durable partner, dependent child or grandchild, and dependent parent or grandparent) living overseas will be able to join an EU citizen resident here after 31 December 2020, where the relationship existed on that date and continues to exist when the person wishes to come to the UK. Provision for future children will be made, in line with the draft Agreement.

Family Members of British Citizens

It has been also decided, as a matter of domestic policy, that a family member of a British citizen who is lawfully resident in the UK by 31 December 2020 by virtue of regulation 9 of the EEA Regulations, will be eligible to apply for status under the EU Settlement Scheme contained in Appendix EU.

Legal Assistance

EU SETTLEMENT SCHEME DETAILS
BREXIT UPDATES
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.

GDPR – complexities of small print and how to take it easy

Summary by Xena Semikina, Solicitor and Higher Rights Advocate

The EU General Data Protection Regulations (GDPR) are coming into force on 25 May 2018 and so far it has caused quite a stir among businesses.

The date is upon us, the penalties for non-compliance are severe and hardly anyone knows what exactly they have to do to comply. You suddenly find yourself on the wrong side of the law without knowing right from wrong.

The 119 page document was published in small print in an official periodical of the European Union and only lawyers can read it without falling asleep.

However, the beast is not vicious, but only misunderstood. We naturally have a fear of things we don’t know, but thankfully we don’t need to take up a degree course every time we face this fear.  This article will explain the new law in little more than a thousand words – not enough to make you an expert, but enough to alleviate the fear and prompt you to act.

It’s not difficult to grasp a piece of legislation if you know only one thing about it – its purpose. The purpose of a legislation is its spirit. The spirit of this particular legislation can be summoned by only one word – accessibility. This is the only thing that makes this legislation very different from all those pre-existing ones. All the rest of changes are subsequent to this one and arise from it naturally, by the virtue of common sense.

There are two main reasons why information has to be accessible and it affects subjects’ rights at two main stages – the stage of data collection and the stage of data retention.

Data Collection

At the stage of data collection the primary concern is the clarity of the information provided to the subjects. It is at this stage that your customers are expected to make the decision whether or not to enter a business relationship with you and share their data. The universal principle of human co-existence in a free world is that every contact between human beings has to be consensual. No one can be made party to something they reject. And business interactions are not different from private interactions in this respect.

Your customers have to give their consent to share their data with you and this consent has to be given knowingly.

‘Knowingly’ means that they have to know what exactly they are consenting to, how exactly their data will be used. They will not know, if they are not informed. ‘Informing’ used to mean ‘providing information’. GDPR puts an end to this interpretation and this is the most fundamental change it introduces.

According to GDPR ‘informing’ means not only providing information, but presenting it in a clear form, accessible to majority of people. When you request consent, you have to present your request in a clear, unambiguous language, and in a form which is easy to read (Article 7). No more lengthy policies in small print, no more hyperlinks that crush devices before they link – information has to be right before your customers’ eyes. You have to state your request in a plain and concise language, identifying clearly why you need the data, and the subjects have to give their consent explicitly, which means consciously. Pre-ticked boxes no longer count as an explicit consent.

Data Accessibility

Now you have collected the data and you keep it. This is where the new law kick in for the second time, and again with the same kick – accessibility.

In the language of GDPR it is called ‘data portability’. According to Article 20 of the GDPR 2016/679 the data has to be stored in commonly used and structured way. It has to be machine readable and easily transferable. The rationale behind this rule is very simple.

The data has to be easily accessible and available at a short notice on request of the data subject. It also has to be easily deleted if the subject requests it. This is because the subjects have the right of access to the data (Article 15) held by any business or organisation, they have the right to withdraw their consent for the processing of their data at any time (Article 7(3)) and request erasure of the data – so called ‘right to be forgotten’ (Article 17).

At this stage many of you may think: ‘I don’t like it’. It smells of total restructuring of your website and maybe the entire business, which for smaller enterprises may mean a great strain on already tight resources.

Here is good news for you.

A lot of businesses don’t need to modify their website or their business practices. Obtaining your customers’ consent is only one lawful basis for legitimate data processing (Article 6). In many clear cases consent may in fact be presumed. It covers situations where the data you have collected are strictly necessary for the pursuit of your business purposes, in other words the purposes which are mutual for you and your customers – the provision of services by you to them. In the language of GDPR it’s called legitimate interests.

GDPR & Legitimate Interests

When you think about it, it only makes sense. If someone comes to you and asks you to do something for him, of course he expects you to know where to find him. You do not need to explain to him that this is the purpose of you retaining his data and you don’t need to ask him for consent, because it is already presumed and clear to both of you. He has given it to you by his act of requesting your services. However, when using this basis for data processing, you have to be extra careful, because you take extra responsibility for the subjects’ rights and interests, and you have to balance you legitimate interests against their interests and fundamental rights at every point of data collection.

It may well be that your business does not have to undergo painful and expensive restructuring and all you have to do is to update two documents – your Privacy Policy and your Terms and Conditions – to make references to the new legislation. A careful analysis of your website at all points of data collection will show whether or not you will need your customers’ consent at any of those point or you can use legitimate interests basis.

At Sterling Lawyers, for a small fee, we can carry out thorough analysis of your website and your business practices, and advise you on whether or not you need to introduce changes to comply with the new legislation. We can also help you to amend your existing documents and create customer and staff notices compliant with GDPR.

For any assistance please feel free to contact Xena Semikina, Solicitor and Higher Rights Advocate by e-mail: xena@sterlinglawyers.co.uk or phone +44 (0) 207 822 8599 

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.

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.