Immigration Law

Despite not requiring leave to enter or remain in the UK, it is possible for an EEA national to be excluded or removed from the UK. The restrictions described below derive from the Treaty of Rome (Article 39(48)) (see also Council Directive 64/221) and are repeated in the Immigration (EEA) Regulations 2006 which provide for the exclusion or deportation from the UK of EEA nationals.Regulations 23to 27 provide that a person may be removed from the UK if:

• he is not or has ceased to be a qualified person (or the family member of a qualified person) under the regulations; or
• he is a qualified person (or the family member of a qualified person) but the Secretary of State has decided that his removal is justified on the grounds of public policy, public security or public health or on the grounds of misuse of rights.

What issues may constitute public policy grounds?

The decision must be taken on the basis of the personal conduct of the individual concerned: previous criminal convictions do not in themselves justify a decision. Clearly a decision to exclude or deport is contrary to the principles of free movement and the person concerned must be informed of the grounds on which a decision is taken. Case law suggests that criminal conduct (either very serious or where there is a likelihood of re-offending) and conduct considered a threat to the interests of society / national security may give rise to such cases.

British nationals who have travelled to another EEA Member State and exercised Treaty rights in that state (often, but not always, by working there) will be able to return to the UK accompanied by non-EEA family members and will be able to rely on the Treaty rights/EU law. This principle (also described as the ‘Surinder Singh principle’) was established in the case of R v IAT and Surinder Singh ex p SSHD [1992] 3 CMLR 358. Regulation 9 of the Immigration (EEA) Regulations 2006 incorporated the Surinder Singh judgment. The requirements are:
a) that the British national resided in an EEA state as a worker, student, self-employed, self-sufficient person or acquired the right of permanent residence in an EEA state;
b) the family member and the British national resided together in the EEA state and their residence was genuine;
c) the British citizen would satisfy the conditions for residence if they were an EEA national (e.g. they are within their first 3 months of residence (initial rights of residence) or are a qualified person);

d) the purpose of the residence in the EEA host country was not to avoid
any U.K immigration law applying to non-EEA nationals.

Definition of family member

The applicant must provide evidence of their relationship as a direct family member (reg 7) of the British citizen sponsor.

The UKVI guidance titled ‘Free Movement Rights: family members of British citizens’ (October 2017) states that ‘Applicants claiming to be extended family members (for example, durable partners or dependent relatives) of British citizens do not have a right of residence under the 2016 regulations. If the applicant is an extended family member, you must refuse the application.’

Genuine residence

Following the introduction of the tough financial requirements in July 2012 in relation to family applications under the Immigration Rules (see Chapter 5), there was a significant rise in the number of applications made via the Surinder Singh route, as this was a far easier route than via the domestic law.

The provisions subsequently introduced in the ‘genuine residence test’ made it harder for couples to return to the UK under the EEA route.

Factors relevant to whether the residence was genuine are set out in regulation 9 (3):

• whether the centre of the British national’s life transferred to the EEA state;
• the length of the family members and the British national’s joint residence in the EEA state.
• the nature and quality of the parties’ accommodation in the EEA state, and whether it is or was the British national’s principle home. For example, a mortgaged home or long-term rented accommodation is more likely to indicate genuine residence than living at a hotel or a bed and breakfast, or short stays with friends.
• the parties’ degree of integration in the EEA state, for example proof of speaking the language, having children born or living there, or involvement in the local community;
• whether the family member’s first lawful residence in the EU with the British national was in the EEA state.

However, in ZA (Reg 9. EEA Regs; abuse of rights) Afghanistan [2019] UKUT 281 (IAC), the Upper Tribunal found that there is no basis in EU law for the centre of life test. It further found that the test is not to be applied when Judges assess Surinder Singh cases that appear before them.

Where a negative decision has been made in relation to an EEA right, for example, where the family member of an EEA national has been refused entry to the UK, or where the authorities have refused to issue such a person with an EEA family permit, there are rights of appeal. EEA decisions attract a right of appeal. Where there is a national security dimension to the case the appeal will lie to the Special Immigration Appeals Commission (‘SIAC’).

Regulation 36 of the 2016 Regs requires an EEA national and/or a family member or an extended family member of an EEA national wishing to assert a right of appeal to produce evidence of identity and nationality. In addition family members must produce either an EEA family permit or a qualifying EEA state residence card or (in some circumstances) proof of their relationship with the EEA national.

However, applications under the EU Settlement Scheme do not carry a right of appeal. This is because they are not, formally, EEA decisions, but decisions under the Immigration Rules (and not within the range of appealable decisions set out in s.82 Nationality, Immigration and Asylum Act 2002).

Challenges to decisions under the Scheme are therefore by Administrative Review and by Judicial Review.

In anticipation of Britain leaving the EU, the Home Office set up an application programme called the EU Settlement Scheme to which EEA nationals may apply.

This was done by amending the Immigration Rules (an easier process than creating new regulations). The relevant section of the Rules is Appendix EU.

The scheme confers two forms of status: settled and non-settled status.

Settled status is effectively equivalent to permanent residence, as described above. The application requires EU citizens to prove that they have been living in the UK for five years – not necessarily that they have been a qualified person continuously for five years.

Pre-settled status is effectively equivalent to a registration certificate, as described above. The application requires EU citizens to prove that they were resident in the UK on or before 31 December 2020. Again, there is no specific requirement that they were a qualified person.

Both statuses afford access to the labour market and to state benefits and services in the same way as under the 2016 Regs.

Both statuses allow family members to accompany or join the EEA national in the UK.

At the time of writing, the deadline for applying is 31 December 2020 if the United Kingdom leaves the EU with no deal, and 30 June 2021 if there is a deal.

Failure to apply by the deadline will mean that an EEA national would end up with no legal right to live in the UK.

The application process and grant

An app has been designed for the application, with which applicants scan and upload ID documents, and relevant documents to prove their residence in the UK. In many cases it is sufficient to provide a National Insurance number, if that shows evidence of work (or of receipt of benefits).

Family members also need to upload evidence of their relationship to the EEA national.

There is no fee for the application.

At the time of writing, no documentary confirmation of status is issued. A person granted status must rely on the Home Office’s records of their status being accurate and accessible.

Number of applications under the scheme

During 2019, 2.7 million applications were received under the scheme. (This may not equate to 2.7 million applicants. Some applications may have included family members. Conversely, some may have been repeat applications where an initial application was rejected, e.g. for insufficient evidence.)

In the same period, 2.45 million applications were successful.

Of those, 58% were given settled status. 41% were given pre-settled status.

Timeline following exit day

Any future changes will depend on the nature of the UK’s relationship with the EU, which in turn will depend on negotiations to take place during the first half of 2020.

At the time of writing, significant dates are as follows; some may well be subject to change.

1 March 2020	The EU is aiming to have its negotiating mandate agreed by this date (to be confirmed at a meeting on 25 February 2020.) This would give the European Commission the legal authorisation to open talks with the UK. A priority will be to hammer out a free trade agreement that will be the core of a future economic relationship.
June 2020	A summit should take place to assess the progress of the talks. June is also the final month for Britain to request an extension of its transition period beyond 2020 (which the Prime Minister has said he will not do).
26 November 2020	A trade deal must be negotiated, checked, translated and presented to the European Parliament by this week if it is to be ratified by the end of the year.
31 December 2020	If a trade deal is not in place, then Britain will fall back on to basic World Trade Organization terms, meaning tariffs on goods and little practical co-operation to smooth border checks. The outcome would effectively be the same as a no-deal Brexit and both sides would need to make preparations for how they cope with the economic fallout in 2021.
31 December 2022	The final date to which the transition period could be extended (though, as noted above, the Prime Minister has ruled this out).

Where an EEA national exercised Treaty rights, their spouse and children, and in some cases other relatives, would generally be entitled to accompany them to the UK. The right of the family members to remain in the UK was contingent upon the EEA national exercising their rights (i.e. remaining a qualified person).

It is also important to remember that both family members who are EEA nationals themselves and non-EEA family members could accompany or join the EEA national in the UK.

Family members are defined in regulations 7 and 8 of the 2016 Regs. Regulation 7 essentially deals with:

• spouses and civil partners;
• children;
• parents; and
• grandparents.

Regulation 2 makes it clear that a person will not be regarded as the spouse, civil partner or durable partner of another person for the purposes of the regulation where another spouse, civil partner or durable partner of either person is already present in the UK. Also, unsurprisingly, a spouse does not include a party to a marriage of convenience.

Regulation 8 deals with extended family members. An extended family member is essentially someone who does not come within regulation 7 and is:

a) a relative of the EEA national, and is also one of the following;

• the person is residing in a country other than the UK and is dependent on the EEA national or is a member of his household;
• a relative who on serious health grounds requires care from the EEA national, his spouse or civil partner; or
• a partner of the EEA national (other than civil partner) who can prove to the UKVI that he/she is in a durable relationship with the EEA national.

Documentation

Non-EEA family members

Non-EEA family members were obliged to get an EEA family permit before they travelled to the UK if they were visa nationals (i.e. citizens of countries who always need visas to enter the UK), or if they were coming to live with the EEA national permanently or on a long-term basis.

The EEA family permit was a form of entry clearance, issued free of charge. The permit allowed non-EEA family members to travel with the EEA national or join them in the UK.

A non-EEA national (who was the family member of an EEA national) could also apply for a residence card as confirmation of their rights derived from the EEA national’s rights, once in the UK.

Note that family members could come to the UK independently of the EEA national – but in those circumstances the normal UK immigration rules would apply, including visa requirements.

EEA family members

EEA family members could simply enter the UK in their own right. They would simply require some form of ID or a passport. As an EEA national they would have an initial right of residence of 3 months. If they wished to remain beyond the 3 month period as a family member of a EEA national (who must be qualified) they could apply for a registration certificate to confirm their right to reside.

It was also possible for an EEA family member to apply for a EEA family permit prior to entry to the UK.

EEA nationals benefit from the provisions relating to freedom of movement under EU law.

EEA nationals have a peculiar immigration status in the context of UK immigration law:

• UK immigration law (most significantly the Immigration Act 1971 and the British Nationality Act 1981) draws a distinction between persons who have a ‘right of abode’ in the UK (mainly British citizens) and persons who do not.
• Anyone who does not have a right of abode can only enter or remain in the UK if granted leave to do so.
• Anyone who has a right of abode can enter and reside in the UK – they do not need to seek or be granted leave (though they need to demonstrate their right of abode on entry – most commonly by producing a British passport).
• EEA nationals do not have a right of abode.
• Despite this, by virtue of EEA law, EEA nationals do not need leave to enter or remain in the UK.
• This status is limited slightly by the requirement to be exercising rights arising from the Treaty of Rome; but it is nevertheless a special status, not similar to any other status under UK immigration law.

The rights of EEA nationals derive directly from EU law (the Treaty of Rome, Regulations and Directives) and where there is conflict between EU law and domestic law, EU law prevails (case 6/64 Costa v ENEL [1964] ECR 585).

An EEA national can exercise treaty rights provided they are a ‘qualified person’.

Initial right of residence

EEA citizens now enjoy a three month initial right of residence in other Member States, effectively as a short term qualified person (regulation 13 of the 2016 Regs).During this time, family members can join or accompany the EEA citizen.

Extended right of residence for qualified persons

If an EEA citizen wishes to remain beyond this initial three month period, they must be a qualified person. If they are a qualified person, they have an ‘extended right of residence’.

Under regulation 6 of the 2016 Regs, a qualified person is a person who:
a) is an EEA national; and
b) is in the UK as:

• a job seeker;
• a worker;
• a self-employed person;
• a self-sufficient person; or
• a student.

The definitions of these categories of person are broad.

Workers

The European Court of Justice (‘ECJ’) defined a worker in the case of Lawrie Blum (1986) ECR 2121 as a person who is:

• employed:
•  
• for a period of time;
•  
• in the provision of services;
•  
• for and under the direction of another;
•  
• in return for remuneration.

The definition is liberal and does not require that the person must be employed on a full time basis; the work simply needs to be ‘effective and genuine’.

EEA nationals do not need permission to work in the UK.

Involuntary unemployment

Regulation 6 (2) of the 2016 Regs also allows for a worker who has become involuntarily unemployed to continue to be treated as a worker. In order to fully understand Regulation 6(2), which is set out below, it is important to have an overview of the regulation as a whole.

Regulation 6 — “Qualified person”

Immigration (EEA) Regulations 2016

(1) In these Regulations,
“jobseeker” means an EEA national who satisfies conditions A, B and, where relevant, C;
“qualified person” means a person who is an EEA national and in the United Kingdom as—
(a) a jobseeker;
(b) a worker;
(c) a self-employed person;
(d) a self-sufficient person; or
(e) a student.

“relevant period means”

(a) in the case of a person retaining worker status under paragraph (2)(b), a continuous period of six months;
(b) in the case of a jobseeker, 91 days, minus the cumulative total of any days during which the person concerned previously enjoyed a right to reside as a jobseeker, not including any days prior to a continuous absence from the United Kingdom of at least 12 months.

(2) A person who is no longer working shall not cease to be treated as a worker provided that the person —

(a) is temporarily unable to work as the result of an illness or accident;
(b) is in duly recorded involuntary unemployment after having been employed in the United Kingdom for at least one year, provided that the person—
(i) has registered as a jobseeker with the relevant employment office; and
(ii) satisfies conditions A and B;

(c) is in duly recorded involuntary unemployment after having been employed in the United Kingdom for less than one year, provided that he—
(i) has registered as a jobseeker with the relevant employment office; and
(ii) satisfies conditions A and B;

(d) is involuntarily unemployed and has embarked on vocational training; or

(e) has voluntarily ceased working and embarked on vocational training that is related to his previous employment.

(3) A person to whom paragraph (2)(c) applies may only retain worker status for a maximum of six months.

(4) A person who is no longer in self-employment shall not cease to be treated as a self-employed person for the purpose of paragraph (1)(c) if he is temporarily unable to pursue his activity as a self-employed person as the result of an illness or accident.

(5) Condition A is that the person—
(a) entered the United Kingdom in order to seek employment; or

(b) is present in the United Kingdom seeking employment, immediately after enjoying a right to reside pursuant to paragraph (1)(b) to (e) (disregarding any period during which worker status was retained pursuant to paragraph (2)(b) or (ba)).

(6) Condition B is that the person can provide evidence that he is seeking employment and has a genuine chance of being engaged.

(7) A person may not retain the status of a worker pursuant to paragraph (2)(b), or jobseeker pursuant to paragraph (1)(a), for longer than [the relevant period] unless he can provide compelling evidence that he is continuing to seek employment and has a genuine chance of being engaged.

If you think the wording of regulation 6 seems convoluted, you are not alone. What regulation 6(2) means, put simply, is that a person does not necessarily lose his ‘qualified person’ status if he cannot work due to illness or accident (reg.6(2)(a)), or involuntary unemployment (reg 6(2)(b))provided that certain conditions are satisfied.

An EEA national who has been employed in the UK and who has become involuntarily unemployed will still be treated as a worker – and will therefore continue to be a qualified person – provided that certain conditions are met. These conditions are that the person must have registered as a jobseeker with the relevant employment office, and must satisfy additional conditions, described as conditions A and B.

Condition A is that the person must have come into the UK to find work, or must be in the UK seeking work immediately after a period of being a worker, a self-employed person, a self-sufficient person or a student.

Condition B is that the person must provide evidence that he is looking for a job and has a genuine chance of being taken on in a job.

Vocational training

Regulation 6 (2) (d) permits a person to retain their worker status where they are involuntarily unemployed and have embarked on vocational training.

The final category is regulation 6 (2) (e), which permits a worker to retain their ‘worker’ status where they have voluntary left employment to take up vocational training related to their previous employment.

Time limits

Regulations 6(1) and 6(7) set limits on the length of time that a person may retain the status of a worker.

A person who wants to retain their status as a worker following involuntary unemployment cannot retain this status for longer than a continuous period of six months (reg. 6 (1)) unless they can provide compelling evidence that they are continuing to seek employment and have a genuine chance of being engaged (reg. 6 (7)).

Job seekers

There is guidance on the definition of a ‘jobseeker’ at regulation 6(1). To be defined as a jobseeker, a person must satisfy conditions A and B (above). In addition, if it is relevant, the person must satisfy condition C which is a rather complicated provision and the contents of which are outside the scope of this course.

Essentially the effect of these conditions is that a jobseeker is a person who enters the United Kingdom in order to seek employment and can provide evidence that he is seeking employment and has a genuine chance of being engaged.

A person who wants to continue to remain in the UK as a jobseeker cannot retain this status for longer than 91 days (reg. 6(1)), unless they can provide compelling evidence that they are continuing to seek employment and have a genuine chance of being engaged (reg. 6 (7)).

The court examined the meaning of ‘genuine chance of being engaged’ in AG & Ors (EEA-Jobseeker) Germany (2007) UKAIT 00075. The court found that it was necessary to look at a number of factors:

• • the job seeker’s intentions in entering the member state;
  • the job seeker’s efforts in relation to finding work in the member state; and
  • the job seeker’s prospects of obtaining employment.

Students

A student is defined in regulation 4(1)(d) of the2016 Regs. To be construed as exercising a Treaty right, a student must:

i. be enrolled for the principal purposes of following a course of study at a public or private establishment which is:
a) financed from public funds; or
b) an institution accredited by the Secretary of State for the Home Department;

ii. have comprehensive sickness insurance in the UK; and

iii. sign a declaration confirming that he has sufficient resources not to become a burden on the social assistance system in the UK during his period of residence in the UK.

Permanent residence

Reg. 15 of the 2016 Regs provides for a right of permanent residence in the UK on various bases. The most important of these (and the most common basis for an application) is where an EEA national has resided in the UK for five years and has been a qualified person continuously for those five years.

The five years could be any five years: so if an EEA national had worked for five years continuously, but then left the UK and stayed away for three years, they could still make an application and be granted permanent resident in the UK.

A more common question is that of how ‘continuous’ is construed if, for example, a person has worked for some periods but been out of work for other periods. In this case, commonly the person would seek to argue that they remained a qualified person throughout:

• • by being a jobseeker under reg. 6(1) (for up to 91 days);
  • by being temporarily unable to work due to illness or accident under reg. 6(2)(a). In this situation, worker status is retained indefinitely, as confirmed by the ECJ’s decision in Tarola (C-483/17), 11 April 2019;
  • by being involuntarily unemployed after having been employed for at least a year, under reg. 6(2)(b). Again, worker status is retained indefinitely, per Tarola;
  • by being involuntarily unemployed after having been employed for under a year, under reg. 6(2)(c). Here, Tarola confirms that worker status is only retained for 6 months.

Giving up work for pregnancy does not negate worker status, as the ECJ confirmed in Saint-Prix (C507-12), 19 June 2014. That was a person who had been in employment; the same applies to self-employed persons, as the ECJ confirmed in Dakneveiciute (CJEU C-544/18, 19 September 2019).

It is also possible to remain a qualified person on the basis of the exercise of a broader combination of Treaty rights – for example, part of the period being in employment and part as a student (subject to the additional requirements in reg. 4(1)(d)).

There can be procedural difficulties, though, in demonstrating to the Home Office that a person has remained a qualified person on multiple bases.

Documentation and registration

During the transition period, for EEA and Swiss nationals, there should be only a brief passport or identity card check on arrival in the UK.

Prior to Brexit, if an EEA national person stayed in the UK other than as a short-term visitor, they could apply for a registration certificate from the UKVI website. This was normally valid for 5 years.(The expectation was that people would commonly seek a registration certificate and then, after five years as a qualified person, apply for permanent residence.)

The registration certificate confirmed the person’s right to live in the UK under EU law and allowed them to apply for residence cards for any eligible family members with them who were not EEA citizens.

The certificate was not compulsory – because the person’s rights would arise from the Treaty as long as they remained qualified persons. The certificate was therefore not evidence of any grant of leave. It was only a document by which the UK recognised the rights that the person already had.

Nevertheless, it was highly advisable for an EEA national to obtain a registration certificate, for a number of reasons. First, from a practical perspective, the registration certificate could assist the EEA national to access services in the UK, for example to demonstrate to a bank that they were resident in the UK.

Secondly, in order to apply for an EEA family permit (discussed below) or residence card for family members, the UKVI required the EEA national to have a registration certificate to demonstrate that they are a qualified person.

Historically there were no compulsory application forms – again, because a qualified person automatically had rights.

The law in relation to the rights of EEA nationals comes from a variety of sources, including the following important sources.

The Treaty of Rome and EC law

The rights we are discussing ultimately derive from Treaty of Rome 1957 (as amended by subsequent treaties). The UK became a member of the European Community in 1973, since when provisions of the Treaty of Rome bind the UK by virtue of the European Communities Act 1972.

In 1993 the EEC became known as the European Community (‘EC’). The member states of the EC formed the European Union (‘EU’).

The core of Community law as regards immigration is the right to free movement of EU citizens and their family members for work and other economic activities. The Treaty on the European Union also provided structures for co-operation between governments on issues such as asylum.

Council Regulations and Directives

EU policies are given effect in legislation via ‘regulations’ and ‘directives’. A couple of examples of regulations and directives relevant to this area are:

• Council Regulation 1612/68, which confirms the rights of workers in respect of eligibility for employment, equality of treatment and family members; and
• Directive 2004/38 (also known as the Citizen’s Directive) which relates to the free movement rights of EU citizens.

Immigration (European Economic Area) Regulations 2016

In UK law, the Immigration (European Economic Area) Regulations 2016 (‘2016 Regs’) give effect to the rights in relation to free movement and immigration under EU law.

The 2016 Regs are partly a consolidation of recent judgments and previous EEA regulations including the Immigration (European Economic Area) Regulations 2006, European Economic Area (Amendment) Regulation 2012 (SI 2012/1547), and the Immigration (European Economic Area) (Amendment) Regulations 2013 (SI 2013/1391).

The 2016 Regs are the main basis for decisions on application by EEA nationals and their family members, and therefore the main focus of this Chapter and the SGS.

The definition of an EEA national

EEA nationals are:

• nationals of the member states of the European Union (‘EU’); and
• nationals of Iceland, Liechtenstein and Norway (which are parties to the European Economic Area Agreement).

The Agreement on the Free Movement of Persons made between the EU and the Swiss Confederation places Swiss nationals and their families in broadly the same situation as EEA nationals and their families in the context of immigration law. These countries enjoy full rights of free movement around the EEA.

Although there had previously been provisions allowing the limitation of rights of certain new Member States, all now enjoy full rights. Limitations had previously been in place for nationals of:

• the eight Accession states (the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Slovakia, and Slovenia,also known as the A8 countries)
• Bulgaria and Romania (also known as the A2 countries); and
• Croatia.

Member countries that enjoy Full Rights of Free Movement

• European Union (including A8 and A2 countries)

Austria Italy Belgium Bulgaria Croatia Cyprus Czech Republic Denmark Estonia Finland France Germany Greece Hungary Ireland

Latvia Lithuania Luxembourg Malta The Netherlands Poland Portugal Romania Slovakia Slovenia Spain Sweden

• Parties to EEA agreement

Iceland
Liechtenstein
Norway
Switzerland (though not a member of the EEA, for freedom of movement purposes, is treated by all EEA members as if it was a member.)

The Impact of Brexit

On 23 June 2016 the UK voted by referendum to leave the EU,by a 52% majority. This will have a signficantimpact on immigration law.

At the time of writing, the final effects of Brexit remain unclear. The UK is scheduled to leave the EU on 31 January 2020 (‘exit day’), though transitional provisions will remain in place until 31 December 2020.

Article 50 of the Lisbon Treaty sets out how an EU member state might voluntarily leave the EU. It requires a member state:

• to notify the European Council of an intention to leave;
• to negotiate a deal on its withdrawal (the ‘Withdrawal Agreement‘); and
• to establish a newlegal framework for a future relationship (‘Future Relationship Agreement’) with the EU.

Article 50 provides a two-year period, from the date of the initial notification, in which the Withdrawal Agreement should be agreed. Failure to do so results in the exiting state leaving the EU with no new provisions in place, unless every one of the remaining EU states agrees to extend the negotiations.

The UK triggered Article 50 on 29 March 2017, meaning that the UK was, from that date, set to leave the EU on 29 March 2019. Subsequent extensions were agreed to 31 October 2019 and then to 31 January 2020.

The Withdrawal Agreement is intended to deal with issues including:

• the rights of EU citizens in the UK and of UK citizens abroad;
• the relocation of EU agencies currently based in the UK; and
• how to allocate unspent funds due to be received by UK regions and farmers.

The Withdrawal Agreement needs a qualified majority of member states and consent of the European Parliament.

The future relationship agreement will cover a wide range of issues including immigration. At the time of writing, substantive negotiations on a future relationship agreement have yet to begin.

Therefore, the future legal landscape remains shrouded in fog. For now, the provisions relating to EU law and specifically free movement are still legally

binding in the UK. This Chapter will now deal with the law as it stands immediately following exit day.

It will then set out a timeline of events henceforth (though this may well change) and deal with the most likely effects of Brexit.

Immigration control can take place in the following locations:

• Overseas before entry to the UK: applications for entry clearance (which will act as leave to enter in most cases) to Entry Clearance Officers;
• At ports on entry to the UK: applications for entry to the United Kingdom to Immigration Officers;
• Within the UK after entry: applications to remain in the UK to immigration caseworkers of the UKVI.

Entry clearance

Entry clearance is immigration control which takes place prior to a person arriving in the UK. Applications are made to entry clearance offices at British Embassies or High Commissions abroad, or to the UKVI via an online application process.

An entry clearance document, often referred to as a visa, can take the form of a sticker (known as a vignette) in the holder’s passport or travel document. For some types of visa, the UKVI now also issue a Biometric Residence Permit – a card – once the person arrived in the UK.

For some countries, the UK always requires entry clearance before travel, for all types of visa. A list of those countries (‘visa national’ countries) is appended to the Immigration Rules (Appendix V, Appendix 2).

For other countries (‘non-visa national’ countries – any non-EEA countries not listed in Appendix V, Appendix 2), the UK allows nationals of those countries to travel to the UK for short periods without seeking entry clearance before travel. They still require leave to enter, but they can apply for that at the port when they arrive.

For anyone applying to enter the UK for a period of more than six months, they must always seek entry clearance before travelling.

What is the procedure for entry clearance?

In dealing with an application for entry clearance for a particular purpose, the entry clearance officer (‘ECO’) or UKVI will apply the immigration rules. The entry clearance procedure requires a form of application to be submitted, together with the appropriate fee, and any supporting documentation. Many of the busiest entry clearance posts now employ an agent or commercial agent to accept and process applications before forwarding them to the entry clearance post for decision.

The application is usually made on-line to a Visa Application Centre (‘VAC’), thereafter the applicant is given an appointment to attend the VAC. At this appointment the applicant must submit the required documentation, pay the application fee and Immigration Health Service Charge (where applicable), and provide biometric data i.e. finger prints and photographs etc. (s.126 of the Nationality Immigration and Asylum Act 2002 requires the submission of biometric information as part of a valid immigration application). Section 14 of the IA 2014 provides for the use and retention of biometric information, but only if it is necessary for immigration and nationality purposes. Biometric data can also be retained for a broad range of non-immigration purposes such as the prevention of crime, protection of nationality security etc. Concerns have been raised about these provisions and the need to ensure that agencies carrying out immigration functions comply with data protection regulation. The applicant may be interviewed, but this is less common.

In some entry clearance posts the practice is for the applicant to attend the VAC for an appointment, thereafter they must send their documents to the UKVI in Sheffield who will make a decision.

What happens if the application is refused?

If the ECO is minded to refuse the application may be reviewed by an Entry Clearance Manager. If the decision is upheld the applicant is informed as to whether they have a right of appeal against the decision.

Can a person travel once they have entry clearance?

Yes – generally entry clearance also operates as leave to enter the UK (Immigration and Asylum Act 1999 and the Immigration (Leave to Enter and Remain) Order 2000), and therefore the person can finalise their travel arrangements. The ECO will make this clear.

Where entry clearance has been granted, a person should be subject to fewer checks on arrival in the UK. However, on arrival an Immigration Officer may examine the grant of entry clearance, and has the power to cancel it if, for example, there has been a change of circumstances or it is shown that the leave was obtained on the basis of false information. See IA 1971, Schedule 2, paragraph 2A.

Leave to enter the United Kingdom

Immigration control takes place at all ports in the UK and is administered by the UKVI. The Immigration Service consists of Immigration Officers (‘IOs’) Chief Immigration Officers (‘CIOs’) and inspectors appointed by the Home Secretary. Leave to enter may be granted abroad (as above) or on entry to those ¬persons not requiring a visa before travelling (i.e. non-visa nationals), for certain categories of 6 months or less. Persons without entry clearance will be required to submit to a more detailed examination by an immigration officer at the port, who will seek to ascertain whether they satisfy the requirements of the immigration rules for the category in which they are seeking to enter. The IO will do this by means of questioning and examination of the applicant’s documents.

What happens if the application is refused?

Whether a person has a right of appeal against refusal will depend on the basis on which they were seeking to enter. Those arriving without entry clearance for temporary purposes have very limited appeal rights. In such circumstances the only in-country remedy may be judicial review.

Leave to remain

Applications for further leave to remain are dealt with by the UKVI and may be granted in accordance with the immigration rules or on a discretionary basis, outside the rules. Applications may be for an ‘extension of leave’ for a further period in the same category (e.g. a student applies for a further period of leave to complete a course), or to vary leave to an alternative category, known as ‘switching’.

What is the procedure for applying for leave to remain?

Most applications to extend/vary leave to the UKVI must be made on prescribed application forms, which are available from the UKVI and can be downloaded from the website. There is a prescribed fee for most applications and since April 2015 a NHS surcharge may be payable.

It is anticipated by the UKVI that applications to vary/extend leave will be made while the applicant’s existing leave to remain is still current. Where an application is made in this way, an applicant may remain in the UK lawfully while the application is being considered (even though the previous leave may expire before the application is decided) and the conditions attached to the original leave remain in force until a decision on the application is made (see IA 1971 s. 3C). If an application is made after an applicant’s leave to remain has expired, the applicant will be an overstayer at the time of the application and therefore potentially subject to immigration enforcement action by the Immigration Service.

What happens if the application is refused?

A client may have a right of appeal to the Tribunal. This will depend on the type of application made and it is likely that a right of appeal will only exist if asylum and/or human rights issues are raised.

Types of application and powers of the immigration authorities

A person who requires leave to enter or remain must make an application to the appropriate body depending on where they are, their circumstances and the purpose of their application. The immigration authorities (abroad, on entry or after entry) have powers to grant or refuse leave to enter or remain and the UKVI can “curtail” existing leave in certain circumstances. The immigration rules set out the criteria for most applications and there are also general grounds in the immigration rules on which applications can be refused. In some circumstances the application will be outside the rules and based on asylum law, human rights law or at the discretion of the UKVI.

Work by a representative on an immigration or asylum matter can be funded as follows:

• privately by the client;
• publicly funded where the client is eligible; or
• in some cases organisations may provide pro bono advice.

Public Funding

There have been a number of significant changes to publically funded work following the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (‘LASPO’), which came into force on 1 April 2013. The agency which administered publically funded work was previously called the Legal Services Commission (‘LSC’). The LSC is now called the Legal Aid Agency (‘LAA’). Further in the context of immigration work, public funding is now only essentially available in cases involving asylum, detention, victims of trafficking, victims of domestic violence and forced marriage, protection of children and the Special Immigration and Appeals Commission.

As a result of LASPO the majority of immigration applications are no longer automatically eligible for public funding: they are an ‘excluded category’. LASPO includes a provision which enables the LAA to grant some funding to excluded category cases: this is known as ‘exceptional funding’.

The Lord Chancellor’s Guidance on when exceptional funding should be granted sets a high threshold and uses words like ‘rare case’ or ‘risk of breach substantial’. Unsurprisingly, of grants of exceptional funding have been rare: around 1% of exceptional funding applications in immigration cases have been granted.

A number of challenges were brought against the LAA refusal to grant exceptional funding which led to the judgement R (On the application of Gudanaviciene & Ors) v The Director of Legal Aid Casework & Ors [2014] EWCA Civ 1622. The court held that the guidance being issued by the LAA to make decisions on whether to grant exceptional funding was unlawful as it was effectively too stringent.

A further systemic challenge was brought and resulted in IS (by his litigation friend the Official Solicitor) v Director of Legal Aid Casework and the Lord Chancellor [2015] EWHC 1965 (Admin)) (‘IS’). This case established that the Exceptional Case Funding scheme was operating unlawfully as it gave rise to an unacceptable risk that an individual would not obtain funding where a failure to do so would breach her rights under the European Convention on Human Rights. IS was overturned in the Court of Appeal in Director of Legal Aid Casework and another v IS [2016] EWCA Civ 464. In what many consider an unsatisfactory judgement, the Court of Appeal did find that parts of the scheme are badly operated, but not quite bad enough to be unlawful. The decision is being appealed to the Supreme Court.

Publically funded work can only be carried out by law firms/organisations which have been awarded a LAA contract in the relevant area of law, e.g. for asylum law. Further, the LAA will only provide payment for work carried out by legal representatives who have been accredited under the Immigration and Asylum Accreditation Scheme (‘IAAS’).

The Legal Help scheme

This scheme enables public funding for work undertaken save for representation at an appeal hearing. The Legal Help Form (CW1) must be fully completed with the client and the client must sign it. The scheme is subject to a means and merits test. The merits tests is known as the “Sufficient Benefit test”; you would need to ask yourself ‘would a privately paying client pay in these circumstances?’. The threshold is relatively low. These tests must be assessed by the representative (who must be accredited to carry out such work). The scheme is then subject to financial limits according to the type of case. Most case will operate under the graduated fixed fee scheme (‘GFS’), which essentially limits the amount of profits costs a firm can claim, to a fixed amount.

Controlled Legal Representation

Controlled Legal Representation (CW2 form) is potentially available for representation at asylum appeals and bail applications in the Immigration and Asylum Chamber. It is subject to a merits test based on the prospects of success and a means test. In relation to the ‘prospects of success test’ the representative would need to be satisfied that there were good prospects of success, so around a 50% chance of being successful. In some circumstances there are modifications to the merits test, for example the test is modified when the client is a child.

Costs and client care

Solicitors must observe professional conduct rules in respect of costs and client care. Chapter 1 of the Code of Conduct requires accurate information to be given regarding costs (including explanations of terms such as disbursements and the application of VAT), advance costs information to be provided and clients to be kept fully informed throughout the case regarding costs. Eligibility for legal aid should be discussed and the implications of the appropriate scheme explained. In contentious matters clients should be informed of costs implications.