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IMPACT – MEDIUM
What is the change? A court in Belfast has ruled that an Irish woman born in Northern Ireland is an Irish citizen and has only ever been such. Under the 1998 Good Friday Agreement, people born in Northern Ireland can choose to be British citizens, Irish citizens or have dual citizenship. In this case the Home Office initially rejected a residency application for the woman’s American husband on the grounds that his wife was British, even though she never carried a British passport. The ruling enables the husband to acquire residency in the U.K. as the spouse of an EU national exercising free movement rights.
What does the change mean? The case may benefit other Irish passport holders in their ability to avoid stringent U.K. immigration rules and have their non-EU spouse join them.
Background: The Home Office rejected a residency application by Emma de Souza for her husband, a U.S. citizen. De Souza was born in Northern Ireland and never held a British passport. The Home Office alleged that under the British Citizenship Act 1981, she was automatically considered a British citizen and would have to apply for her husband as a third-country national. The Home Office said de Souza could renounce her British citizenship and then make the application, but she refused and sued.
A tribunal in Belfast ruled in her favor, citing her rights under the 1998 Belfast (Good Friday) Agreement. “Under the terms of the Good Friday Agreement, people of Northern Ireland are in a unique position within the United Kingdom. The British and Irish governments recognised the birthright of all the people of Northern Ireland to identify themselves as Irish or British, or both,” Judge Gillespie said.
The Home Office may not appeal to the tribunal, but it is weighing whether to directly appeal to a higher court.
BAL Analysis: The case has implications for others holding an Irish passport resident in the U.K. and married to a non-EU citizen who now may file a residency application pursuant to EU free movement rather than under the stricter U.K. spousal residency criteria.
This alert has been provided by the BAL Global Practice group in the United Kingdom. For additional information, please contact uk@bal.com.
Copyright © 2018 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@bal.com.
What is the change? The U.K. government plans to double the immigration healthcare surcharge for visa applicants from £200 to £400 per person, per year (and from £150 to £300 per person, per year for students and Youth Mobility Scheme applicants).
What does the change mean? The change will affect new applicants after the implementation date, which has not been announced.
Background: The decision comes as the U.K. government faces mounting public protests demanding greater government funding to save the National Health Service. The healthcare surcharge was introduced in 2015 for all non-EEA nationals coming to the U.K. to work, study or join family for a duration longer than six months. The government has determined that the increase is needed to cover the actual costs of treating the non-EEA population.
BAL Analysis: The doubling of the healthcare surcharge represents a significant increase that employers and individuals should budget for starting this year. BAL will report when the implementation date is announced.
What is the change? U.K. Visa and Immigration has begun to impose stricter counting rules when considering permanent residency applicants who have been away from the U.K. during the requisite five-year period of continuous lawful presence.
What does the change mean? Under the new rules, applicants who are absent for more than 180 days within any rolling 12-month period during the five years may be disqualified for permanent residency. Previously, adjudicators only refused applicants who were absent for more than 180 days within any of the five separate consecutive 12-month periods preceding the application date.
Background: The change to the calculation method was published in the latest Statement of Changes to the Immigration Rules that took effect Jan. 11.
BAL Analysis: Employees and assignees planning to apply for permanent residency should be aware of the stricter criteria and be sure that their absences do not violate the new calculation rules by cumulatively exceeding 180 days in any 12-month period during the qualifying five-year residency period. If absences exceed those permitted, then employees should work with BAL to put forward a compelling case for the absences to be disregarded.
IMPACT – HIGH
What is the change? As BAL anticipated last month, the allocation of Tier 2 restricted certificates of sponsorship (RCoS) has been exhausted for the month of January.
What does the change mean? Employers should expect that Tier 2 applicants whose salaries are below the threshold of £50,000 per year will be rejected and will need to be resubmitted in February.
Background: The annual quota for Tier 2 (General) visas is 20,700, allocated into monthly quotas. In 2016, the monthly distribution was changed to provide higher quotas during high-demand months of April through September and lower quotas in other months, thereby shifting pressure on months at the end of the fiscal year (December through March). When the monthly quota is reached, applications are ranked by points obtained, with more points earned for shortage occupations, higher salaries, and certain Ph.D.-level roles.
BAL Analysis: U.K. employers should anticipate pressure on quotas through March and plan accordingly. Companies that recruit higher earners will continue to be more likely to have their applications approved.
IMPACT – LOW
What is the change? The U.K. Home Office is expanding a visa pilot program that eases immigration processing for international master’s students seeking to study in the U.K.
What does the change mean? The program will be expanded to 23 universities based on low visa refusal rates in their region. Currently the program is limited to four universities, Oxford, Cambridge, Bath and Imperial College of London.
Business impact: The program also allows the students to remain in the U.K. after they finish their courses for up to six months (as opposed to four months for other graduates), giving them more flexibility to obtain work and convert their student visa to a work visa.
Background: Under the pilot program, students applying to one-year master’s programs must still meet all Tier 4 visa requirements, but they qualify for a streamlined process that reduces the number of required supporting documents. The two-year pilot program began in 2016 with four universities and has now been extended for another year and expanded to the 23 universities listed below.
Universities added to the program
BAL Analysis: The expansion of the program is good news for non-EEA students and employers seeking to recruit from the 23 universities and is intended to attract more international students. It shows that the Home Office is taking a liberal approach in contrast to the tough talk on migrant numbers by the government and may be a sign the government’s stance on students is softening against fears that Brexit will deplete student talent and negatively impact the U.K. economy.
What is the change? The allocation of Tier 2 restricted certificates of sponsorship for the month of December has been reached, triggering a points threshold.
What does the change mean? To be approved in December, Tier 2 (General) applicants must earn a minimum of 65 points, which means they must have a Resident Labour Market Test and a salary of £68,000 or higher. However, there are reports—though unsubstantiated—of approvals with lower salary levels.
Background: The annual quota for Tier 2 (General) migrants is 20,700, apportioned into monthly quotas. In 2016, the monthly distribution was changed to provide higher quotas during high-demand months of April through September and lower quotas in other months, thereby shifting pressure on months at the end of the fiscal year (December through March). When the monthly quota is reached, applications are ranked by points obtained, with more points earned for shortage occupations, higher salaries, and certain Ph.D.-level roles.
BAL Analysis: The reaching of the monthly quota indicates increased demand for Tier 2 workers that could carry over to successive months. Companies that recruit higher earners will continue to be more likely to have their applications approved.
Copyright © 2017 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@bal.com.
The House of Commons narrowly defeated the government’s Brexit bill, voting 309-305 Wednesday to insert an amendment that will explicitly require any Brexit withdrawal deal to be approved by a vote of Parliament.
The government’s EU Withdrawal Bill is the U.K. national legislation that will remove all EU law from British statutes on the day of Brexit. Prime Minister Theresa May has sought greater latitude to negotiate and finalize a Brexit deal with the European Union without being explicitly subject to Parliamentary veto. The government has only indicated that Parliament would have a “meaningful vote” on the exit terms.
Some Tory MPs, led by Dominic Grieve, mounted a Conservative revolt, joining Labour and Liberal Democrats to pass the amendment. Grieve, a former attorney general, warned that without the amendment, the bill could lead to “constitutional chaos.”
Brexit secretary David Davis said after the defeat that the government will now consider whether to make further changes to the bill as it moves through Parliament.
EU negotiator Michel Barnier said there would be “no turning back” from commitments the U.K. made last week on phase one Brexit issues of EU citizens’ rights, the Irish border, and the divorce bill. Earlier this week, EU Council President Donald Tusk said it would be a “furious race against time” to complete Brexit negotiations in time. The parties will need to reach a Brexit deal by roughly September 2018 to give individual EU countries time to approve it before the deadline for the U.K.’s exit in March 2019.
BAL Analysis: Though a majority of MPs opposed the U.K. leaving the EU, they have repeatedly said they will honor the voters’ will. So while Wednesday’s vote will not reverse Brexit, it could give a stronger hand to those who want a softer break from the EU and closer future ties, potentially complicating the U.K.’s negotiating stance as it heads into Brexit trade talks early next year.
What is the change? The Home Office has published its latest statement of immigration rules for non-EU/EEA migrants.
What does the change mean? Several business immigration related changes affect points-based visa holders and their dependents, those applying for permanent residency, and students converting to Tier 2 visas.
Background: The changes relevant to business immigration, which will affect applications made after Jan. 11, are as follows:
BAL Analysis: The changes provide positive news for Tier 2 applicants who will no longer be disqualified from permanent residency due to long breaks in employment, as well as for employers recruiting Tier 4 students switching to the Tier 2 category. However, dependents of Tier 2 and other points-based migrants will need to observe the 180-day absence rule to remain eligible for permanent residency. BAL welcomes any attempt to streamline the visa process and looks forward to positive effects for business travelers, in the mid-term, while anticipating teething issues in the short-term.
The European Union and the United Kingdom have reached a deal on phase one Brexit issues, with the U.K. making key concessions on the rights of EU citizens in the U.K. and agreeing to avoid formation of a hard land border between Ireland and Northern Ireland, and both parties agreeing to the methodology of a financial settlement.
EU and U.K. negotiators issued a 15-page joint report Friday detailing the agreement in principle and the commitments of each side to be reflected under a full withdrawal agreement. The agreement allows the negotiators to move on to phase two talks dealing with trade.
Key immigration-related provisions are summarized as follows.
Citizens’ rights:
Ireland and Northern Ireland:
The agreement recognizes the unique challenges presented by the U.K.’s withdrawal from the EU and notes that this agreement will not predetermine the outcome of wider discussions. Nonetheless, the following principles are key:
BAL Analysis: The agreement provides greater certainty for EU citizens living in the U.K. (and British citizens living in the EU) regarding their current and future rights and should help them plan accordingly. In particular, the cutoff date for retaining EU rights will not be earlier than the date of withdrawal, meaning that all EU nationals in the U.K. and British citizens in the EU exercising treaty rights on the day of Brexit will have these rights preserved at least until they have gained permanent residence. (This is likely to be called “settled status” under the U.K.’s domestic regime). They will be permitted to bring family members even after Brexit and after the two-year transition period. They will have their EU permanent residence rights recognized by the U.K., which provides an incentive to apply now for permanent residency. Those who have not yet accrued the five years needed for permanent residency will gain residence status using streamlined procedures with evidentiary flexibility that prevents rejection based on administrative errors and omissions.
Brexit negotiations have broken down over the issue of Ireland and Northern Ireland, as U.K. Prime Minister Theresa May’s proposal has been rejected by the Democratic Unionist Party, the largest party in Northern Ireland. The DUP is staunchly in favor of Northern Ireland remaining part of the U.K. and currently supports May’s minority government.
In a leaked draft proposal, May proposed that Northern Ireland keep some form of “regulatory alignment” with European Union regulations and remain in the single market, essentially creating an exception to the U.K.’s withdrawal from the EU. The DUP, however, sees the proposal as treating Northern Ireland differently from the rest of the U.K. and a step toward Irish reunification, which it opposes.
“We have been very clear,” DUP leader Arlene Foster said. “Northern Ireland must leave the EU on the same terms as the rest of the United Kingdom. We will not accept any form of regulatory divergence which separates Northern Ireland economically or politically from the rest of the United Kingdom. The economic and constitutional integrity of the United Kingdom will not be compromised in any way.”
The breakdown of Brexit talks not only puts EU-U.K. trade talks on ice, but also weakens the fragile U.K. Conservative governing majority and could significantly complicate Brexit.
Ireland’s Prime Minister Leo Varadkar expressed surprise and disappointment at the last-minute failure of the EU-U.K. agreement that Ireland was ready to approve. He said that Brexit talks cannot move ahead without assurances from Britain that no hard border will be established between Ireland and Northern Ireland. “The ball is very much in London’s court,” he said. On Wednesday, according to press reports, the Irish government expressed its willingness to accept an additional provision within the EU-U.K. agreement stating that the agreement would not compromise the integrity of the U.K.
Those seeking a softer Brexit quickly seized on the moment to indicate that if Northern Ireland is exempted from Brexit, so too should others. Scotland’s First Minister Nicola Sturgeon said on Twitter that if one part of the U.K. can retain regulatory alignment with the EU and effectively stay in the single market, “there is surely no good practical reason why others can’t.” London Mayor Sadiq Khan and Wales’ First Minister Carwyn Jones chimed in, saying that their regions would also seek to remain in the EU single market.
BAL Analysis: The collapse of the agreement on Ireland threatens to delay or derail Brexit talks. May and the DUP reportedly have until Sunday at the latest to reach an agreement with the EU on the Irish border issue. This would conclude phase I of Brexit negotiations and is necessary before they can move on to discussions about the U.K.’s future trade relations with the EU. BAL is following all Brexit developments and will report on any new developments. For background on the Irish issues involved in Brexit, read BAL’s white paper, “Brexit: What’s at Stake for Ireland.”