Refugees, Asylum Seekers and Economic Migrants

Refugees, Asylum Seekers and Economic Migrants

The United Kingdom constitutes one of the countries that attracts more and more immigrants every year. More specifically, between March 2016 and 2017, 588,000 people migrated into the U.K within a year, with a result the net migration to reach approximately 250,000.[1] Even though at the same time 342,000 people emigrated from the U.K and a decline can be noticed compared to the immigration flow of 2015,[2] these numbers are still impressive with the U.K being the second European Union country welcoming the most foreigners.[3] However, all these people coming to the U.K have a different status according to which are entitled to distinct rights and obligations.

 

Refugees

According to Art. 1 of the Convention Relating to the Status of Refugees 1951, a person is granted the legal status of the refugee when due to “a well-founded fear of being prosecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion is outside of the country of his nationality, and is unable to, or owing to such a fear, is unwilling to avail himself of the protection of that country”.[4]

 

More specifically, the UNHCR figures indicate that by June 2016, 117,176 refugees could be found in the U.K, coming from Iran, Pakistan, Iraq, Afghanistan, Bangladesh, Albania and India. Before being granted the status of the refugee, a person is considered being an asylum seeker and lives under Asylum Support.[5] The reasoning according to which the authorities decide whether someone falls under the category of the refugee, is that he can prove that his life would be at high risk in case that returned to him home country.[6]  However, as soon as, the status changes, the refugee has the right to stay U.K for a long-time period or indefinitely and he is entitled to Asylum Support for only 28 more days, from the day the decision has been taken.[7] That means that after this period of time lapses, the refugee will stop getting the monthly cash allowance to which it was entitled by then and will have to move to a different house in case that the state has given him somewhere to live as an asylum seeker.[8]

 

In any case, a refugee has the right to work in the U.K, at any profession and at any skill level that he wishes to. The U.K takes into consideration the factors that could possibly make it difficult for a refugee to seek or find a job quickly enough and offers considerable assistance.[9] For example, the Refugee Council offers free employment advice and support service to the refugees living in London, by providing them with one to one meetings where the refugees along with an expert can assess his skills and capabilities and set a realistic employment plan, by giving them access to employment preparation workshops and by offering help with job search in general, including resumes and interview preparation.[10] In case that a refugee has acquired a professional qualification in his home country and wishes to do the same job in the U.K, the UK NARIC provides significant services regarding the compatibility of the qualifications and how to effectively achieve it for a relatively small monetary charge.[11]

 

In the meantime, refugees are also entitled to welfare benefits such as, among others, Income Support in case they are have been learning the English language for at least a period of 15 weeks and have been in the U.K for a year or less, the Jobseeker’s Allowance in case they are looking for employment and can prove it, and the Employment and Support Allowance in case that a physical or mental disability prevents them from finding a job.[12] Even though the transition period from being an asylum seekers to becoming a refugee is the most challenging one, as most of these people end up being homeless[13] and with no income at all, the U.K has managed to put in place a social system that is trying, as much as possible, to promote the smooth and effective adaptation of refugees in the society.

 

For more information regarding the available support after getting the refugee status please visit: https://www.citizensadvice.org.uk/immigration/asylum-and-refugees/after-you-get-refugee-status/

 

Asylum Seekers

An asylum seeker is an individual who, due to threatening to his life and well-being, flees his home country and arrive to another country-in this case the U.K- by using whatever way possible for them.[14] According to Section 94 (1) of the Immigration and Asylum Act 1999, is any person who “is not under 18 and has made a claim for asylum which has been recorded by the Secretary of State but not yet determined”.[15] When it comes to what exactly constitutes a claim for asylum, the same section mentions that it is a claim that if denied and the claimant is required to leave the country and exposed to dangerous conditions for his life by returning to his home country, then the U.K it would be violating its obligations under the Refugee Convention or under Art.3 of the European Convention of Human Rights and the Human Rights Act 1999.[16] More specifically, the asylum seekers claim in their refugee application that by returning back to their country of origin there is a “well-founded fear of being prosecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion”, without this definition excluding the possibility of punishment and torture.[17]

 

The United Kingdom by being a member of the Refugee Convention and by having incorporated the European Convention of Human Rights within its legal system, has the obligation to fulfill the absolute right of the prohibition of torture not only by not subjecting human beings to torture or inhuman or degrading treatment or punishment but also by ensuring that by deporting asylum seekers, it is not, potentially, exposing those individuals to such treatments.[18] The asylum seekers must present themselves to U.K authorities as soon as they arrive in the country and await until a decision is taken.[19] In the meantime, the refugees will be put under Refugee Support which will offer them a weekly cash allowance of £36,95 and place to live somewhere.[20] In case that their application gets approved, they will acquire the legal status of the refugee and will be able to work and stay permanently in the U.K.[21] However, if their application gets rejected, they asylum seeker is denied protection and has leave to country as soon as possible unless they can prove that they have other legitimate reasons preventing from returning home or they decide to appeal the rejection of the authorities.[22]

 

Economic Migrants

An economic migrant, finally, is an individual who has left his country and came to the United Kingdom in order to make a better living by getting a better paid job than that he would be able to find in his own country and by having access to a better social benefits system.[23] In addition, a person seeking a job is possible to initially enter in the U.K either lawfully or unlawfully, without that affecting whether he will be eventually granted the status of the economic migrant.[24]

 

More specifically, an economic migrant does not usually move to the U.K due to a fear of being prosecuted for reasons of race, religion or nationality but mainly because of the abundant job and financial opportunities that can find there.[25] In any case, sometimes asylum seekers aim at being economic migrants by seeking not only protection but a better social and financial quality of life as well. However, it should be noted, that economic migrants cannot be granted the statues of the refugee with the online exception being proving the job opportunities and social being and even their life.[26] A very significant percentage of the economic migrants in the United Kingdom, the last 20 years, consists of European Union citizens who by taking advantage of the free movement of people within the Union, are entitled to lawfully reside and look for work opportunities in the U.K.[27]

 

The European citizens, in addition, have access to all the social benefits and pensions schemes and enjoy the same rights and obligations as the U.K citizens.[28]  Furthermore, the European Union migrants constitute over 20% of the overall labor force of the United Kingdom, dominating, among others, mainly the sectors of vegetable, fruit and meat “processing and preservation”, bakery products and stone industries.[29] The E.U migration peaked in year 2015, when the net migration reached 184,000 of which the impressive percentage of 84% moved in the U.K. for work related reasons.[30]

 

The Brexit referendum, however, have had as a result, for the E.U migration, not only to decrease gradually the last two years but also for many European Union citizens living and working in the U.K for many years either return back to their countries to move in to another European Union state which will offer them equally good employment opportunities and at the same time certainty for the future.[31] With the E.U migrants having such an impact upon the functioning of the U.K sections, a possible voluntary or involuntary departure of theirs from the country can been proven highly harmful for the overall economy.[32]

 

Thus, as it is understandable, even though the United Kingdom has been attracting, for many years now, foreigners from all over the world, who wish to reside either temporarily or permanently here, at the same time it has taken very effective measures. The U.K seems to have developed a very well structured immigration system that protects the different types of immigrants and determines their position in accordance to the relevant legal conditions and criteria. It only remains to be seen now how the upcoming realization of the Brexit will reshape the immigration schemes in place and will affect the country in its entirety.

 

[1] Office for National Statistics, ‘Migration Statistics Quarterly Report’ (Office for National Statistics , 25 May 2017)<https://www.ons.gov.uk/peoplepopulationandcommunity/populationandmigration/internationalmigration/bulletins/migrationstatisticsquarterlyreport/may2017>accessed 26 November 2017.

[2] Ibid.

[3] Eurostat: Statistics Explained, ‘Migration and Migrant Population Statistics’ (Eurostat: Statistics Explained, 27 March 2017) <http://ec.europa.eu/eurostat/statistics-explained/index.php/Migration_and_migrant_population_statistics#Further_Eurostat_information> accessed 26 November 2017.

[4] UN General Assembly, Convention Relating to the Status of Refugees, 28 July 1951, United Nations, Treaty Series, vol. 189, p. 137.

 

[5] UNHCR, ‘Asylum in the UK’ (UNHCR; The UN Refugee Agency, December 2016) <http://www.unhcr.org/uk/asylum-in-the-uk.html> accessed 26 November 2017.

[6] Ibid.

[7] Citizens Advice, ‘After you Get Refugee Status’ (Citizens Advice, 2017) <https://www.citizensadvice.org.uk/immigration/asylum-and-refugees/after-you-get-refugee-status/>accessed 26 November 2017.

[8] Ibid.

[9] Ibid.

[10] Refugee Council , ‘Refugee Employment Advice & Support Service’ (Refugee Council: Supporting and Empowering Refugees, 2017)<https://www.refugeecouncil.org.uk/what_we_do/refugee_services/refugees_into_jobs/refugee_employment_advice_support_service> accessed 26 November 2017.

 

[11] UK NARIC, ‘Services for individuals’ (UK NARIC, 2017) <https://www.naric.org.uk/naric/individuals/> accessed 26 November 2017.

[12] Citizens Advice, ‘After you Get Refugee Status’ (Citizens Advice, 2017) <https://www.citizensadvice.org.uk/immigration/asylum-and-refugees/after-you-get-refugee-status/>accessed 26 November 2017.

[13] Kate Lyons, ‘Asylum Seekers Forced into Homelessness by Paperwork Delays, Study Finds’ (The Guardian, 10 July 2017)<https://www.theguardian.com/society/2017/jul/10/asylum-seekers-forced-into-homelessness-support-applications> accessed 26 November 2017.

[14] UNHCR, ‘Asylum in the UK’ (UNHCR; The UN Refugee Agency, December 2016) <http://www.unhcr.org/uk/asylum-in-the-uk.html> accessed 26 November 2017.

[15] Immigration and Asylum Act 1999

[16] Ibid.

[17] Ibid.

[18] Jean-François Akandji-kombe, ‘Positive Obligations under the European Convention of Human Rights’ (Council of Europe, January 2007) <https://rm.coe.int/168007ff4d>accessed 26 November 2017.

[19] British Red Cross, ‘Refugee facts and figures’ (British Red Cross, 2017) <http://www.redcross.org.uk/What-we-do/Refugee-support/Refugee-facts-and-figures> accessed 26 November 2017.

 

[20] Citizens Advice, ‘After you Get Refugee Status’ (Citizens Advice, 2017) <https://www.citizensadvice.org.uk/immigration/asylum-and-refugees/after-you-get-refugee-status/>accessed 26 November 2017.

[21] British Red Cross, ‘Refugee facts and figures’ (British Red Cross, 2017) <http://www.redcross.org.uk/What-we-do/Refugee-support/Refugee-facts-and-figures> accessed 26 November 2017.

[22] Ibid.

[23] British Red Cross, ‘Refugee facts and figures’ (British Red Cross, 2017) <http://www.redcross.org.uk/What-we-do/Refugee-support/Refugee-facts-and-figures> accessed 26 November 2017

[24] Ibid.

[25] UNHCR, ‘Asylum in the UK’ (UNHCR; The UN Refugee Agency, December 2016) <http://www.unhcr.org/uk/asylum-in-the-uk.html> accessed 26 November 2017.

[26] UNHCR, ‘Asylum in the UK’ (UNHCR; The UN Refugee Agency, December 2016) <http://www.unhcr.org/uk/asylum-in-the-uk.html> accessed 26 November 2017.

[27] European Union, Consolidated version of the Treaty on the Functioning of the European Union, 13 December 2007, 2008/C 115/01.

[28] Ibid.

[29] Jamie Doward &Harry Robertson, ‘EU migrants make up over 20% of labour force in 18 British industries’ (The Guardian, 29 July 2017)<https://www.theguardian.com/politics/2017/jul/29/eu-workers-fifth-labour-force-18-sectors-britain-economy> accessed 26 November 2017.

[30] Office for National Statistics, ‘Migration Statistics Quarterly Report’ (Office for National Statistics, 25 May 2017)<https://www.ons.gov.uk/peoplepopulationandcommunity/populationandmigration/internationalmigration/bulletins/migrationstatisticsquarterlyreport/may2017>accessed 26 November 2017.

[31] David Reed, ‘Immigration and the UK’s post-Brexit economy’ (The Guardian, 7 September 2017) <https://www.theguardian.com/politics/2017/sep/07/immigration-and-the-uks-post-brexit-economy> accessed 26 November 2017.

 

[32] Ibid.

Tier 2 Visas

Tier 2 Visas

The Tier 2 visa category is applicable for employers who wish to sponsor a skilled migrant worker. The Tier 2 category is sub-divided into four subcategoriess, in which the relevant categories are the ‘Tier 2 (General)’, and ‘Tier 2 (Intra-Company Transfer)’. The Tier 2 (Intra-Company Transfer) is further sub-divided into three categories: ‘Long Term Staff’, ‘Graduate Trainee’ and ‘Skills Transfer’.

 

The Tier 2 (Intra-Company Transfer) category are for migrant workers who have been offered a role in a UK branch of the organisation, and the Tier 2 (General) category are for skilled migrant workers who have a job offer by a UK employer.

 

When sponsoring a migrant worker for a role in the UK under the Tier 2 (General) category, the employer must show that they have ‘tested’ the UK labour market in finding a suitable worker who is already settled and present in the UK, otherwise known as the Resident Labour Market Test.

 

The Resident Labour Market Test (RLMT)

 

The RLMT has been introduced by the UK Visas and Immigration to protect the settled workforce which obligates an employer to advertise a job vacancy to settled workers before extending the job opening to migrant workers.

 

A settled worker is any individual worker who has the skills and experience the employer is seeking.

 

Exemptions to the RLMT

 

There are a number of exemptions to having to carry out a RLMT[i]:

 

  • The migrant worker is already working for the employer and an extension of their Tier 2 (General) visa is required;
  • The advertised job is in the shortage occupations list;
  • The employer is sponsoring a migrant worker who currently has leave in the UK or is searching for post-study work;
  • The total salary package for the job is £159,600 or above;
  • The employer is a Higher Education Institution and was previously sponsoring a migrant worker who is returning to resume their post after a period of academic leave;
  • The job is in a supernumerary research position and the migrant worker has been issued a scientific research award;
  • The migrant worker will be sponsored as a doctor or dentist;

 

How the RLMT is carried out

 

All employers are required to place at least 2 job adverts for a period of 28 calendar days, either continuously or in 2 separate stages in which both stages must not be fewer than 7 calendar days. “The adverts make sure that there are no suitable workers already living permanent in the UK”[ii]. The advert must be a ‘genuine advert’.

 

If an employer has been unable to find a settled worker then the advertisement for migrant workers must be advertised within the 6 months before the employer has signed the certificate of sponsorship to a migrant. The certificate of sponsorship is discussed below.

 

If an employer finds that they have more than one candidate with all the necessary skills and experience they had advertised for, where one is a settled worker and the other a migrant worker, the employer must appoint the settled worker even if the migrant worker is more skilled and experienced.[iii]

 

Certificate of sponsorship

 

When an employer assigns a Tier 2 (General) certificate of sponsorship they are confirming that they have tested the UK market (carried out the RLMT) and have been unable to find a suitable settled worker to fill the job opening or an exemption is applicable.

 

The certificate of sponsorship must be assigned within 6 months of the date when the job opening was first advertised. Where the job opening has been advertised in 2 stages, the certificate of sponsorship must be assigned within 6 months of the date of the first of the 2 advertisements appeared.

 

The employer is required to provide full details of the RLMT carried out when assigning a certificate of sponsorship. If the employer has not used the RLMT they must explain why and which exemption from the RLMT applies.

 

The effect of the RLMT on Tier 2 migration

 

Whilst the RLMT may be an adequate tool for employers to source suitable settled workers, whether the RLMT fulfils this is a question to consider.

 

Based on statistics, it may show that the RLMT does not necessarily result to employers finding a suitable settled worker for their job positions. In 2016 there were 56,058 Tier 2 Skilled work sponsored visa applications and 56,012 applications in 2015[iv]. “In the year ending September 2016, the Office for National Statistics estimated there were 67,000 non-EU long term migrant workers in the UK, and this was similar to the previous 12 months”[v]. An increase each year is shown with the number of migrant workers entering the UK with a Tier 2 visa.

 

However, on the opposite side a survey conducted on 1,000 businesses in the UK established that 93% were at risk of having their sponsor licence revoked and only 7% “advertise vacancies correctly[vi]. The RLMT explicitly states that all job openings must be advertised in accordance with the guidelines stipulated by the UK Visas and Immigration. By advertising incorrectly it may show that the employers were not exposing themselves enough to find a suitable settled worker in the UK.

 

Reforms of the Tier 2 visa

 

“On 24 March the Government issued its preliminary response to the comprehensive review of Tier 2 (General) and Tier 2 (Intra-Company Transfer) routes carried out by the Migration Advisory Committee”[vii].

 

The reforms were implemented to “protect job opportunities for UK residents and reduce the UK businesses’ reliance on foreign workers”[viii] and to maintain the cap at 20,700 to ensure that Tier 2 visas are only granted to migrant workers who have the skills that are needed for the UK economy[ix]. More specifically, the Tier 2 (General) visa category was amended to reduce the number of migrant workers entering the UK, whilst the Tier 2 (Intra-Company Transfer) visa category was amended to “make it more difficult for multinational companies to transfer foreign employees into the UK”[x].

 

The main changes are as follows:

 

  • For both the Tier 2 (General) and Tier 2 (Intra-Company Transfer) visa category a significant change is the introduction of an Immigration Skills Charge which will be levied on employers who employ migrant workers in skilled areas. The charge will be £1,000 per migrant worker per year, and a reduced rate of £364 per migrant worker for smaller companies and charities. The Migration Advisory Committee strongly supported the introduction of an Immigration Skills Charge to incentivise employers to reduce their reliance on migrant workers and to invest in training and upskilling UK workers[xi]. Exemptions to the Immigration Skills Charge are PhD-level jobs and international students who are switching from the student visa to the Tier 2 visa category. This is a “key protection to help retain the talented workers and students who are vital in helping the British economy grow”[xii].

 

  • The minimum salary threshold for high earners has increased from £155,300 to £159,600. Employers who recruit individuals with a minimum salary of £159,600 will be exempt from carrying out the RLMT.

 

  • The minimum salary threshold for sponsored workers over the age of 26 has been increased to £30,000 per year from £25,000. The minimum salary threshold for new entrants has remained at £20,800. By increasing salaries this will place more pressure on employers as they will be unable to recruit for lower paid positions from the workforce within the UK[xiii]. Start-up and growth businesses will especially be affected[xiv].

 

  • Advertising methods will be extended for graduate recruitment in satisfying the RLMT.

 

  • Extra weighting will be given within the annual limit to businesses sponsoring migrant graduates. Graduate will be permitted to switch roles in a company if they secure a permanent position at the end of the training programme. This will give employers flexibility in employing and retaining graduates, and increasing the confidence to invest in their training knowing that they should be able to retain those individuals more easily in the future[xv]. Therefore, potentially reducing migration.

 

  • Nurses will remain on the Shortage Occupation List, but employers will still need to carry out a RLMT before recruiting a non-EEA nurse. (The Shortage Occupation list details the professions that are in high demand in the UK). This may “seem inconsistent to require employers to satisfy the RLMT for a role deemed to be shortage, but the Government is keen to ensure no suitable settled worker is displaced before sponsorship occurs”[xvi].

 

  • Migrant students under a Tier 4 visa will be permitted to switch to a Tier 2 visa without the need for an employer to carry out a RLMT.

 

  • Tier 2 (Intra-Company Transfer) migrant workers were previously exempt from the Immigration Health Surcharge (a mandatory contribution to the NHS) but now employers will be required to pay a surcharge of £200 per migrant worker per year.

 

  • The current Tier 2 (Intra-Company Transfer) provisions have been simplified by requiring all intra-company transferees to qualify under a single visa category with a minimum salary threshold of £41,500. The Graduate Trainee category is exempt from this change but instead a reduction in the minimum salary threshold has been enforced from £24,800 to £23,000. This change “will reduce an employer’s option to transfer staff to the UK for specialist but lower paid positions”[xvii].

 

  • The minimum salary threshold for Tier 2 (Intra-Company Transfer) migrant workers wishing to extend their visa in this category for up to 9 years has been reduced from £155,300 to £120,000. This enables the employer to retain their employee for a longer period.

 

Impact of the reforms

 

As the reforms have been recently enforced it is too early to statistically determine what the impact has been. However, many sectors have heavily criticised the reforms declaring that UK businesses and the economy will be negatively impacted.

 

Employers are likely to find the changes inhibiting their ability to bring non-EU nationals into the UK and increase their recruitment costs[xviii]. Before the reforms were put into place employers were finding it expensive to employ non-EU nationals as they were already required to pay for certificates of sponsorship, entry clearance / leave to remain fees, immigration health surcharge payment for the Tier 2 (General) category and relocation costs[xix]. Now with the Immigration Skills Charge and the expansion of the Immigration Health Surcharge, this will substantially increase an employer’s costs.

 

The greatest criticism has been towards the Immigration Skills Charge. “As many employers are already under significant financial pressure to compete globally, an imposition of the Immigration Skills Charge will further build the UK’s reputation as a business-unfriendly country for overseas nationals”[xx]. “From an immigration perspective, the imposition of the Immigration Skills Charge will only increase the costs for employers at the expense of settled workers, with no tangible long-term benefits elsewhere”[xxi].

 

Further, “many employers may decide to leave the position unfilled, instead recruit from the EU”[xxii] or risk having to use settled workers who are not skilled[xxiii]. “A potentially disastrous consequence is that if employers are unable to fill key posts for their businesses, the UK’s economy may be put at a competitive disadvantage”[xxiv].

 

TechUK, which represents 850 UK tech firms, expressed its displeasure in the changes and stated that they will inevitably affect small and medium businesses and international businesses investing in the UK[xxv]. The CEO of TechUK, Julian David, stated that the extra restrictions enforced on the Tier 2 visa, specifically the Immigration Skills Charge, increased salary thresholds and limitations on intra-company transfers, will not make it easy for companies to access the talent they need[xxvi]. Additionally, organisations such as Coadec, a non-profit trade body for start up companies, expressed the view that restricting access to skilled non-EU migrants will potentially limit the available talent pool and stifle the overall growth of the UK[xxvii], and employing non-EU migrants can help “plug the skills gap in rapidly growing sectors and often leading to an increase in UK domestic skills over the long-term”[xxviii].

 

Concerns from the medical profession have also appeared. The chair of the RCGP has urged the Home Office to add GPs to the Shortage Occupation List, making it easier for migrant doctors to work in general practice in the UK.[xxix] Professor Stokes-Lampard has stated that with a number of GPs set to retire in the next few years and the fact that it takes 10 years to train a GP from the UK, a much simpler and straightforward process for GPs entering the UK is required[xxx].

 

Nevertheless, some of the reforms may have a positive impact. UK businesses will now be more aware of being in compliant with the RLMT and not risk having their sponsor licence revoked, especially as employers will now be investing more significantly in recruiting migrant workers. Additionally, with the extended platforms which can now be permitted for employers to advertise their vacancies on for graduate hires, this may help employers more to source the type of graduates they need and in turn force the employers to invest in training to avoid the substantial costs of recruiting migrant workers.

 

[i] Home Office, ‘Tiers 2 and 5: Guidance for Sponsors’, Version 05/17, pages 118-121, <https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/616206/Tier_25_guidance_05-2017.pdf>

[ii] “UV visa sponsorship for employers”, <https://www.gov.uk/uk-visa-sponsorship-employers/job-suitability>

[iii] Home Office, ‘Tiers 2 and 5: Guidance for Sponsors’, Version 05/17, page 118, <https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/616206/Tier_25_guidance_05-2017.pdf>

[iv] National Statistics Work, (23 February 2017) < https://www.gov.uk/government/publications/immigration-statistics-october-to-december-2016/work>

[v] ibid

[vi] Jo Faragher, , ‘Employers ‘sleepwalking’ on right-to-work compliance for overseas workers’,  Personnel Today, (28 September 2017), < https://www.personneltoday.com/hr/employers-sleepwalking-right-work-compliance-overseas-workers/>

[vii] Tilly Oyetti, ‘Major Tier 2 reform coming in Autumn 2016 and April 2017’, Charles Russell Speechlys, Lexology, (12th April 2016), < https://www.lexology.com/library/detail.aspx?g=7fdf5ea7-11e8-47ca-91d0-b0ff5ac5bf56>

[viii] Home Office, ‘Visa changes to reduce reliance on foreign workers’, (24th March 2016), < https://www.gov.uk/government/news/visa-changes-to-reduce-reliance-on-foreign-workers>

[ix] House of Commons, ‘Immigration: skills shortages’, < https://publications.parliament.uk/pa/cm201516/cmselect/cmhaff/429/42903.htm>

[x] Jemima Johnstone, ‘Changes to UK Tier 2 (Intra-Company Transfer) Visa, DavidsonMorris Solicitors, Lexology, (14th August 2016), < https://www.lexology.com/library/detail.aspx?g=48c30027-11be-4200-b3a2-5062a969daed>  2

[xi] James Brokenshire, ‘Tier 2 (Skilled Workers): Written Statement – HCWS660’, (24th March 2016), < https://www.parliament.uk/business/publications/written-questions-answers-statements/written-statement/Commons/2016-03-24/HCWS660/>

[xii] Department for Business, Innovation & Skills and Jo Johnson MP, ‘Government’s new Immigration Skills Charge to incentivize training of British workers’, (24th March 2016), < https://www.gov.uk/government/news/governments-new-immigration-skills-charge-to-incentivise-training-of-british-workers>

[xiii] Charlie Pring and Vikki Wiberg, ‘The outlook for UK immigration – the next 12 months, Taylor Wessing, Lexology, (12th May 2016), < https://www.lexology.com/library/detail.aspx?g=dff1a55d-144a-49ba-baaf-ab67bf291b37>

[xiv] ibid

[xv] Charlie Pring and Vikki Wiberg, ‘The outlook for UK immigration – the next 12 months, Taylor Wessing, Lexology, (12th May 2016), < https://www.lexology.com/library/detail.aspx?g=dff1a55d-144a-49ba-baaf-ab67bf291b37>

[xvi] Yuichi Sekine and Lucy Garrett, ‘Home Office Announce Changes to Tier 2 Immigration Route following MAC Review’, The In-House Lawyer, (5th May 2016), < http://www.inhouselawyer.co.uk/legal-briefing/home-office-announce-changes-to-tier-2-immigration-route-following-mac-review/>

[xvii] Charlie Pring and Vikki Wiberg, ‘The outlook for UK immigration – the next 12 months, Taylor Wessing, Lexology, (12th May 2016), < https://www.lexology.com/library/detail.aspx?g=dff1a55d-144a-49ba-baaf-ab67bf291b37>

[xviii] Yassar Lodhi and Emma Morgan, ‘Key changes to Tier 2 from 6 April 2017’, DAC Beachcroft, Lexology, (3rd April 2017), < https://www.lexology.com/library/detail.aspx?g=6927b9ed-61bf-4027-b272-ebbeed29d5a2>

[xix] Tilly Oyetti, ‘Major Tier 2 reform coming in Autumn 2016 and April 2017’, Charles Russell Speechlys, Lexology, (12th April 2016), < https://www.lexology.com/library/detail.aspx?g=7fdf5ea7-11e8-47ca-91d0-b0ff5ac5bf56>

[xx] Yuichi Sekine and Lucy Garrett, ‘Home Office Announce Changes to Tier 2 Immigration Route following MAC Review’, The In-House Lawyer, (5th May 2016), < http://www.inhouselawyer.co.uk/legal-briefing/home-office-announce-changes-to-tier-2-immigration-route-following-mac-review/>

[xxi] ibid

[xxii] ibid

[xxiii] ibid

[xxiv] ibid

[xxv] Caroline Preece, TechUK brands Tier 2 immigration visa reforms ‘disappointing’, ITPRO, (24th March 2016), <http://www.itpro.co.uk/strategy/26267/techuk-brands-tier-2-immigration-visa-reforms-disappointing>

[xxvi] ibid

[xxvii] ibid

[xxviii] ibid

[xxix] Carolyn Wickware, ‘RCGP chair urges Home Office to add GPs to shortage occupation list’, Pulse, (13th October 2017), < http://www.pulsetoday.co.uk/home/finance-and-practice-life-news/rcgp-chair-urges-home-office-to-add-gps-to-shortage-occupation-list/20035451.article>

[xxx] ibid

USA, Trump and the Travel Ban

What is the Muslim Ban?

The Muslim Ban constitutes an order which prohibits, the citizens of seven Muslim majority countries, from entering the United States for a period of 90 days.[1] The seven countries banned include, Syria, Iraq, Iran, Yemen, Sudan, Somalia and Libya. It should be noted that the ban extends to the holders of dual nationality while at the same time diplomats from these counties are exempt.[2] When the Muslin ban came into existence, there was the impression for a while that it also applied to the green card holders.[3] However, it soon became clear that the lawful permanent residents from the effected seven countries would also not be included in the ban.[4]

 

How did it come to place?

While President Trump was still a candidate, one of his main campaign promises was a “total and complete shutdown of Muslims entering the United States until our countries representatives can figure out what is going on’.[5]  On January 27th, 2016, only seven days following his inauguration, President Trump issued the Executive Order 13769, “Protecting the Nation from Foreign Terrorist Entry into the United States”.[6]

 

According to the executive order, the reason for its creation is the responsibility of the President to protect the American people from the terrorist attacks originating by foreign nationals who are admitted to the United States. So, the latter, must effective immediately ban all those who oppose the American constitution and support violent ideologies that may result in acts of bigotry or hatred against the Americans.[7] In order, for this aim to be utilized, the government officials ought to review “the information needed from any country to issue any visa or admission”[8] and ensure that individual is both who he claims to be and that he is not posing a threat for the public security. Within 30 days, from the issue of the executive order, the government officials must present the result of their review to the President as well as to the Secretary of State and the Director of National Intelligence.[9]

 

U.S. Immigration and Customs Enforcement (ICE) Homeland Security I

It is at this point exactly that Muslim ban comes in to play since it constitutes a measure that will be effective until the review is completed and whose purpose is to ensure that the American people are protected from any possible terrorist attacks in the meantime. It is worth mentioning, at this point, that while the content of the executive order is quite strict and clear regarding to what it is envisioned, the seven Muslim-majority countries upon which the order applies are not mentioned explicitly. Instead, section 217(a) (12) of the Immigration and Nationality Act and 8 United States Code section1187(a) (12) on visa waiver program for certain visitors, are used as reference on whose countries’ nationals are temporarily banned from entering the U.S.[10] By not mentioning explicitly, the seven Muslim majority countries, the executive order tries to avoid any potential legal problems, by identifying itself more with the national security than the religion of the nationals banned.

Relevant court rulings so far

As it understandable, as soon as the executive order was issued in January, numerous of reactions took place, with the cases filled in the federal courts reaching the 50.[11] Most of the court rulings regarding the Muslim ban, granted a nationwide temporary restraining order which constitutes a type of temporary relief and prohibits significant part of the executive order to come into force.[12]

 

More specifically, the temporary restraining order explicitly forbids the executive branch from taking any actions that will enforce the parts of the executive order regarding the ban upon the citizens of the seven countries to enter the United States and that will limit the acceptance of refugees by prioritizing religious minorities. One of the most characteristic court rulings regarding the Muslim ban has been that of Judge Watson of the United States District Court in Honolulu, in State of Hawaii and Ismail Elshikh v. Donald Trump. While Judge Watson issued, like many other judges, a temporary restraining order blocking the travel ban of the administration, it is the harsh language used in the ruling that made it go viral. He mentioned, among other things, that “the notion that one can demonstrate animus towards any group of people only by targeting all of them at one is fundamentally flawed”.[13] At the same time, Judge Watson emphasized that despite of the latest claims of the administration that the purpose of the order is not to ban entrance based on religion, the statements of President Trump during his campaign regarding this issue combined with the fact that all seven countries banned consist of a 90%-95% Muslim population, have as a result for anyone to conclude that the “purpose of the executive order is at the very least secondary to a religious objective”.[14]

 

Last September, however, the Supreme Court while reviewing the constitutionality of the executive order, decided to temporarily remove any restriction upon the travel ban issued by the administration with only a few people exempted.[15] This ruling prevented, more 20,000 refugees who had obtained promises from refugee-related organizations, from entering the country until the final decision was taken in October.[16] Such a decision was never actually reached, in the meantime, President Trump replaced the then-travel ban version with a new one.[17] The new policy had as a result for the Supreme Court to dismiss the cases in front of it and avoid ruling upon their legality, at least for the time being.[18]

 

Could Theresa May implement something similar?

In case that the United Kingdom wanted to implement a similar travel ban, the situation would turn to be a bit more complicated than that in the United States. Despite the technicalities of just a decision, the one thing that can be said with certainty is that Theresa May cannot, by any means, implement something similar all by herself. More specifically, the U.K is a parliamentary system with the House of Commons and the House of Lords deciding, through voting, on the passage of the bills and the monarch giving the royal assent at the final stage.[19] Theresa May, as the Prime Minister, is part of both the legislative and the executive branch of the government and while she can start a bill by proposing a such a law, it is upon the majority of the Houses-and particularly of the House of Commons- whether that will be realized.[20] A Bill starting in the House of Commons has to go through 3 readings, a committee stage and a reporting stage in both Houses as well as a consideration of amendments before the royal assent.[21]

 

Even in the case, that such a Bill managed to secure the majority of both Houses and became law, it is very possible that it would meet the opposition of the Supreme Court and intense social unrest, especially if we take under consideration the significance of the Muslim community in the U.K. In any case, as long as, the United Kingdom is still a member of the European Union, which enjoys supremacy upon all its Member States, and the European Union Act is in place, the creation of such a rule is practically impossible.[22]

 

Differences in the U.K and the U.S law that would prevent (or enable) this

The most fundamental difference between the U.K and the U.S law is that they constitute different political systems. More specifically, the latter is a presidential system where the President is elected by the people through the Electoral College while the U.K is, as it was already mentioned, a parliamentary system with the Prime Minister staying in office for as long as the political party to which he or she belongs constitutes the majority in the House of Commons.[23] The fact that the U.S is based on such a system, applies on the case of the travel ban, means that the American President has more powers vested on him that the Prime Minister of U.K.

 

More specifically, the President is the commander in chief of the country and can issue executive orders which are mainly directives addressing the organs of the Federal Government and deriving their legal authority from the constitution or other statutes.[24] While this may give the impression that the President is unstoppable in passing any kind of law that he wishes to, the “check and balances” system is limits his powers in a significant way. Any kind of law or order that seems to contradict the cornerstone of the U.S- the constitution- will be extremely difficult or impossible to be considered legally binding by the Supreme Court and the same time the Congress makes it particularly difficult for legislation to pass.[25]

 

The Prime Minister of the United Kingdom, on the other side, while in theory, can also reach similar decisions, since the passage of Bills requires a simple majority of the seats in Parliament, in practice such a procedure is quite lengthy and will most probably encounter numerous obstacles and oppositions, with the most prominent one being that of the European Union.[26] So, while it seems that in the U.S system the travel ban could be passed faster through an executive order and that in the U.K system while it may take a bit longer, it is a certainty that such a prohibition can be utilized as long as the political party constituting the Parliamentary majority can decide upon anything, the reality is quite different. The system of checks and balances allows the other branches to ensure that the executive is acting according to both the constitution and the rule of law. Finally, the fact that states are also Members of international treaties has an effect as well on how easy it would be for them to arbitrarily decide upon such issues[27].

 

There is no doubt that the terrorist attacks around the world have become extremely frequent the last two years.  These incidents however, cannot be used as an excuse for people to be discriminated and banned from entering any country, just because they happen to share the same religion with some of the people responsible of these atrocious acts. As history has taught us, religious and ethnic generalizations of this kind have always led in far more catastrophic results than they ones they supposedly tried to prevent in the first place. With 2018, around the corner, we should keep in mind the efforts and fights of the previous generations to accept each other regardless of our ethnicity, religion or gender. If unfairness is allowed, to enter our civilization, then our lives will be determined by a veil of uncertainty similar to the one dominating the very dark periods that we thought were behind us long time ago.

 

[1] BBC News, 'Trump's Executive Order: Who does travel ban affect?' (BBC News, 10 February 2017) <http://www.bbc.co.uk/news/world-us-canada-38781302> accessed 19 November 2017.

[2] Ibid.

[3] Dan Merica, 'How Trump's travel ban affects green card holders and dual citizens?' (CNN Politics, 30 January 2017) <http://edition.cnn.com/2017/01/29/politics/donald-trump-travel-ban-green-card-dual-citizens/index.html> accessed 19 November 2017.

[4] Ibid.

[5] BBC News, 'Trump's Promises Before and After the Election' (BBC, 19 September 2017) <http://www.bbc.co.uk/news/world-us-canada-37982000> accessed 19 November 2017.

[6] 82 FR 8977.

[7] Ibid.

[8] 82 FR 8977.

[9] Ibid.

[10] Ibid.

[11] Tom Mccarthy, 'A timeline of Trump’s travel ban: what's happened, and what's next' (They Guardian, 10 February 2017) <https://www.theguardian.com/us-news/2017/feb/10/trump-travel-ban-timeline-washington-supreme-court> accessed 19 November 2017.

[12] Legal infromation institute, 'Temporary restraining order' (Cornell Law) <https://www.law.cornell.edu/wex/temporary_restraining_order> accessed 19 November 2017.

[13] Hawaii v. Trump, No. 17-15589 (9th Cir. 2017).

[14] Ibid.

[15] Emily Shugerman, 'Supreme Court lifts restriction on Trump 'Muslim ban', barring 24,000 people from entering US' (Independent, 11 September 2017)<http://www.independent.co.uk/news/world/americas/us-politics/muslim-ban-trump-supreme-court-restrictions-refugees-lifted-scotus-blocked-a7941551.html> accessed 19 November 2017.

[16] Ibid.

[17] The Guardian, 'US Supreme Court Dismisses Challenge to Trump Travel Ban' (The Guardian, 11 October 2017) <https://www.theguardian.com/us-news/2017/oct/11/supreme-court-trump-travel-ban> accessed 19 November 2017

[18] Ibid.

[19] U.K Parliament, 'How Parliament works' (Www.parliament.uk, 19 November 2017) <http://www.parliament.uk/about/how/> accessed 19 November 2017.

[20] Ibid.

[21] Ibid.

[22] European Union, Treaty of Lisbon Amending the Treaty on European Union and the Treaty Establishing the European Community, 13 December 2007, 2007/C 306/01>accessed 19 November 2017

[23] Aalt-Willem Heringa and Philipp Kiiver, Constitutions Compared (3rd edn, Intersentia Ltd 2012).

[24] Ibid.

[25] Ibid.

[26] Aalt-Willem Heringa and Philipp Kiiver, Constitutions Compared (3rd edn, Intersentia Ltd 2012).

[27] Ibid.

Tier 1 Visas: Investor versus Entrepreneur – The Differences

Tier 1 Visas: Investor versus Entrepreneur – The Differences

The UK is a world-leading and desirable business destination and continuously attracts foreign investment and entrepreneurs seeking for business opportunities. The location of the UK within European markets, language and time zone have been cited as the key attractions for investors and entrepreneurs. Such individuals are often faced with a choice between applying for the Tier 1 (Investor) visa and the Tier 1 (Entrepreneur) visa and often classify themselves as both an investor and entrepreneur.

The Tier 1 (Investor) visa is suitable for high net individuals who will make a substantial financial investment in the UK. Whereas, the Tier 1 (Entrepreneur) visa “is the natural visa to obtain for those wishing to start or invest in a business they will actively be involved in running in the UK”3.

The Differences

Investment

The level of the initial investment for the Tier 1 (Investor) visa and Tier 1 (Entrepreneur) visa is one of the most notable differences. The Tier 1 (Investor) visa specifies a significant initial investment of a minimum of £2 million. You must be able to show that you are holding funds of £2 million or above, under your own unrestricted control, in a regulated financial institution. If you are not holding funds in pounds sterling, the funds must be convertible to £2 million or above.

On the other hand, the Tier 1 (Entrepreneur) visa requires a lower initial investment of at least £50,00 or £200,000. Under the £50,000 requirement, you must be able to show that you have access to at least £50,000 in capital form from a registered venture capital firm registered with the Financial Conduct Authority, seed funding competition or from a government department. You can also apply if you have already invested £50,000 in a UK business as long as you had invested the funds less than 12 months before you applied for the visa. However, under the £200,000 requirement, you must have access to at least £200,000 from your own personal wealth, by a third party or in a joint account with your spouse or partner but only if your spouse or partner are also applying for a Tier 1 (Entrepreneur) visa.

Investment options

Under the Tier 1 (Investor) visa you are only permitted to invest your funds in “loan or share capital in active and trading UK-registered companies”6 as long as the companies have a registered office or head office in the UK, have a UK business bank account, subject to UK taxation, and are doing active business. Whilst, you are not explicitly prevented from investing in your own private company that is registered and trading in the UK as your investment will count as a qualifying investment, “in practice, UK-regulated financial institutions who must custodise the investments are generally unwilling to permit such investments being included in their portfolios”.

A less stringent investment is permitted under the Tier 1 (Entrepreneur) visa, as you are able to engage in a wide range of business sectors, apart from property.

Involvement

The Tier 1 (Investor) visa “is largely passive” as only an investment is required by way of UK government bonds, share capital or loan capital in active and trading UK registered companies. An investment in companies mainly engaged in property investment, property management or property development. A period of at least 5 years investment is required for you to make an application for Indefinite Leave to Remain in the UK.

A greater deal of involvement is required under the Tier 1 (Entrepreneur) visa. You must “set up, join or take over a UK based business as a director or self-employed person and be actively involved in the running of the business”. You must have started, joined or taken over within a period of 6 months. Additionally, you must satisfy the ‘Genuine Entrepreneur Test’ by providing sufficient evidence demonstrating your genuine intention to establish, join or take over a UK based business within 6 months. “The Home Office can request that you attend an interview during which they will attempt to ascertain whether your intentions are genuine”.

Flexibility

Despite the Tier 1 (Investor) visa consisting of limitations on investment, on the opposite side this visa generally provides more flexibility than the Tier 1 (Entrepreneur) visa once you have moved to the UK.

English language requirement:

Crucially, the Tier 1 (Investor) visa initially does not entail an English language requirement unless you wish to apply for Indefinite Leave to Remain in which you will have to prove your knowledge of the English language. The Tier 1 (Entrepreneur) visa strictly requires you to have knowledge of the English language unless you are a national in a majority English speaking country, such as, but not limited to, Australia, Canada, Jamaica, New Zealand and the USA.

Indefinite Leave to Remain

Typically, the aim for many applicants will be to apply for Indefinite Leave to Remain and become a permanent resident in the UK. Under both the Tier 1 (Investor) visa and the Tier 1 (Entrepreneur) visa, you must not spend more than 180 days per year outside of the UK during the qualifying period. (Under the Tier 1 (Investor) visa the qualifying period is 5 years, but if you make an investment of £5 million this will reduce the qualifying period to 3 years, and an investment of £10 million will reduce the qualifying period to 2 years. Under the Tier 1 (Entrepreneur) visa you are eligible to apply for settlement after 5 years having invested the required amount and creating at least two new full-time jobs for UK settled individuals. If you have created at least ten new full-time jobs for UK settled individuals or generated an income of £5 million, the qualifying period will be reduced to 3 years).

The Tier 1 (Investor) visa permits your funds to be held jointly with your spouse or partner, which subsequently means, “either can become the main applicant”. Therefore, “this allows the dependant applicant spouse to spend as much time as needed outside the UK”. This is ideal where frequent travel abroad is required regarding your investment. In comparison, the Tier 1 (Entrepreneur) visa only permits one spouse or partner being the applicant for the visa, and therefore restricted to only 180 days per year of travel outside the UK.

Business opportunities

A report commissioned for the Migration Advisory Committee established that individuals who regarded themselves as both an investor and entrepreneur decided to apply for the Tier 1 (investor) visa because, alongside having the necessary finances, they also “wanted time to identify business opportunities and to become more established”. They felt that the Tier 1 (Entrepreneur) visa route was “overly prescriptive”17 in its requirements for a business to be established within 6 months and to have staff recruited within 2 years. This may suggest that the Tier 1 (Investor) visa route allows more time for you to research and discover opportunities and invest wisely.

Third parties

Both visas permit third parties to assist with your investment funds. The Tier 1 (investor) visa only permits your spouse and partner to make the investment fund available for you. The Tier 1 (Entrepreneur) visa effectively permits anyone to be a third party if your investment fund is £200,000, but if your investment fund is £50,000, your third party is restricted to either a registered venture capital firm registered with the Financial Conduct Authority, seed funding competition or from a government department.

The application process

A considerable amount of documentation is required under the Tier 1 (Entrepreneur) visa. It is a mandatory requirement that a comprehensive business plan must be included as part of your application. In addition to the business plan, your personal circumstances, such as your education, professional experiences, immigration activity and previous activity in the UK, the creditability of your business plan and your evidence of the source of your investment funds, will be looked at. The aim of the application process is “to source the genuine entrepreneurs who can demonstrate they have sound business acumen, extensive background experience and a viable business proposition”. The application process can be viewed as being burdensome and decisions are highly subjective, but with thorough preparation, it is possible to submit an application which will stand up to the rigorous scrutiny of the Home Office.

In comparison to the application process of the Tier 1 (Investor) visa, you will go through a much simpler process. The very least that is required is your current passport or other valid travel identification and evidence showing that you have the required investment funds.

Restrictions on employment

Under the Tier 1 (Investor) visa route you are free to be employed in any capacity apart from a doctor or dentist in training, unless you have a primary degree at bachelors level or above in medicine or dentistry from a UK institution that holds a Tier 4 sponsor licence or is a UK recognised or listed body, you worked as a doctor or dentist in training the last time you were in the UK, or neither of those conditions were part of the terms and conditions on a previous visa. Additionally, you are restricted from working as a professional sportsperson or sport’s coach.

The Tier 1 (Entrepreneur) visa only permits you to be employed within your business.

Refusal rate

A majority of Tier 1 Entrepreneur visa applications are rejected by the UK Visas and Immigration Authority, with a rejection rate of 70%

EU Nationals in the UK

EU Nationals in the UK

In the wake of the Brexit referendum, in June 2016, in which the 51,9% of the electorate decided that the United Kingdom should leave the European Union, the 2.37 million E.U nationals living and working in the U.K found themselves in a position of high uncertainty. This was the first time, since the establishment of the Union citizenship in the Treaty of Maastricht in 1992, that the nationals of an E.U Member State residing in another E.U Member State, started wondering about their legal position and what to do in order to ensure their right to stay in the U.K.

At the time of writing this article- November 2017- the U.K has already triggered Article 50 TFEU which serves as an exit clause for the Member States which wish to withdraw for the European Union. More specifically, this article indicates that the respective Member State should notify the European Council of its intention to leave and start negotiations that will result in a withdrawal agreement with the Union within two years.

Even though the negotiations have already started and the U.K is expected to leave the European Union by March 2019, no final decision has been reached regarding the position of European Union nationals, living and working in the U.K, in the post Brexit era. However, despite of this uncertainty, until the negotiations are completed, the rights of the E.U in the U.K remain the same as they have been for the last 25 years. The Treaty of Maastricht, established for the very first time the concept of the European citizenship which is guaranteed to “every person holding the nationality of a Member State” and paved the way for the creation and development of one of the most fundamental E.U rights, “to move and reside freely within the territory of the States”.

In order, for the right of the free movement of people to be exercised as effective and efficiently as possible, the Directive 2004/38/EC on the right of the citizens of the Union and their family members to reside and move freely within the territory of the European Union, was adopted in 2004 and classified the free movement of E.U nationals into three chronological categories; right of residence for up to three months, right of residence for up to five years and right of permanent residence.

First of all, according to Art. 6 Directive 2004/38/EC, Union citizens wishing to reside on the territory of another Member State for a period of three months or less, have the right to do so without any conditions or formalities applying, other than the requirement of holding a valid passport or identification card. In practice, this means that in case an individual who is a national of any of the other 27 E.U Member States, wishes to move in and reside in the U.K for up to three months, will be able to do so by having either an I.D or a passport, of an E.U Member State, that is still in force.

In case that an EU citizen wishes to stay for a period more than three months, he will be able to do so either by being a worker or self-employed in that Member State or by having sufficient resources and a comprehensive sickness insurance that will ensure that will not become a burden on the host Member State’s social assistance system. The right of moving and residing freely with the EU territory for more than three months, extends also to EU citizens who are either enrolled to a public or private institution, accredited by the host Member State, to follow a course of study or are undertaking a vocation training, and the same time have both a sickness insurance cover and sufficient resources in order “not to become a burden on the social assistance system…during their period of residence”. As it is understandable, Art. 7 Directive 2004/38/EC is trying to ensure the free movement of people for as many different groups as possible and for this reason is providing some exceptions where a Union citizen who is no longer a worker or self-employed can retain his status.

For instance, when a European Union citizen is temporarily unable to work due to a sickness or accident, or when he is a registered job -seeker who had been employed for more than one but he is in duly involuntary unemployment at the time being, he has still the right to reside in the respective host EU state. It should also be noted, that in case that an EU national intends to reside in a host EU country for more than three months, he will have to register to the relevant authorities within, at the very least, 3 months from the date of arrival. So, when applied in the case of the U.K, the E.U nationals have the right to reside in the U.K for a period longer than 3 months as longs as they can prove that they have a job that secures them an income in order to sustain themselves or have sufficient financial resources in case that are not employed.

In addition, students, trainees are entitled to the same rights while at the same time unemployed E.U nationals can retain their status as long as they fulfill the requirements of Art. 7 Directive 2004/38/EC. In any case, applying for a National Insurance Number is a mandatory requirement for all E.U citizens moving in the U.K to either work or study and reside for more than three months. Finally, in case, that an EU national has been residing in the UK for a continuous period of more than five years then he has the right of the permanent residence.

Temporary absences of maximum six months per years or maximum 12 months for important reasons such as compulsory military service, serious illness or pregnancy, do not affect the continuity of residence. However, it should be noted that the permanent residence after acquired, can only be lost if the EU national is absent from the UK for more than two consecutive years.

Furthermore, when a E.U citizen applies for a permanent residence, the U.K shall certify permanent residence after verifying the duration of residence and issue the relevant document as soon as possible. It should also be noted that the rights of moving and residing freely within the EU, apply to the third country nationals who are family members, of the EU nationals residing in the host Member State. These family members can be, according to Directive 2004/38/EC, the spouse, the partner, the dependent direct relatives and the direct descendants who are under 21 years old or the dependents of the EU national himself or of his spouse or partner.

Due to the fact, that as it was already mentioned, the negotiations between the U.K and the E.U officials regarding the status of the EU nationals residing and working in the UK, are still ongoing, the UK government has announced that for the time being and until the UK officially leaves the EU, there is no need for the EU nationals to do anything. But what we know for sure, so far, is that the permanent residence status will be still offered to the EU nationals who have been living in the UK for five years continuously and will enable them to live indefinitely and freely in the UK as well have access to public funds and services, by providing them with the “settled status”.

In addition, these EU nationals will be able to apply for the British citizenship if they wish to do so. In the case, of George Papadakis, for instance, a Greek who have been residing and working in London since 2008, he will still be able to exercise his free movement rights after the UK leaves the EU on April 1st 2019. Since he has been living and working in England for more than five years, he is automatically entitled to get the settled status under the new UK immigration scheme.

When he will receive both the settled status and respective document verifying this, he will have secured his immigration status and there is nothing else that he will be required to do after the UK leaves the EU. Although there is no need to apply automatically for the settled status, as a grace period will be provided, he will still have to request a permission to stay from the Home Office before the grace periods expires.
For the rest EU nationals, their status will depend on the determination of the cut-off date, which will be decided by the negotiators, with the earliest being the date when Art. 50 TFEU was triggered and the latest the date that the UK will officially exit the EU.

More specifically, the EU nationals who moved in the UK before the cut-off date but by the time the UK leaves the EU, in March 2019, have not lived in the country for five years, will be able to apply for the settled status as soon as they reach the five-year threshold. Katarzyna, originally from a small town near Warsaw, has been living and working as a legal advisor in London for a year now, and will have been a UK resident for 2,5 years by the time the UK leaves the EU. In this case, since she arrived in the UK before the cut-off date, she will be able to continue residing and working in the UK during the grace period of blanket permission.

In case that before the end of the grace period she will have been living in the UK for five years, then she will be able to also reside permanently in the UK by applying for the settled status. If however, she will not have lived in the UK for five years by the end of the grace period, then she will have to apply to the Home Office for temporary residence permit, which will allow her to reside and work freely, until she meets the five year threshold. As soon as she has been a resident for five years, she will then be able to apply for settled status as well.

The EU nationals, on the other hand, who arrived in the UK after the cut-off date will have to apply for a permission to continue residing in the UK according to the future immigration policies regarding EU nationals. This means that in this case, the free movement rights will end at the moment that the UK leaves the EU in April 2019. Even though these EU nationals will be able to continue residing within the EU during the grace period, they will have to apply for a permission to stay after the end of that period and in case that the application is successful they will be granted a temporary residence permit.

However, after this permit expires, these EU nationals will have to obtain a subsequent permission which will depend on the immigration rules enforceable at that time and will again have a temporary nature. In the case of the family dependents residing or joining their EU national relatives, the cut-off date will not be applicable and will be able to apply for settled status after five years of continuous living in the UK.

Thus, based on the current information provided by the UK government regarding the new immigration scheme, it is totally understandable for the EU national residing and working in the UK to feel uncertain about what will be their legal status in the near future and how it will affect their lives. However, it is very possible based on the government offers announced so far that a big percentage of the overall EU nationals will be granted the settled statues and the permit to continue residing permanently in the UK. In any case, in order to have a clear picture of what the future holds for the EU nationals, we will have to wait until the completion of the ongoing negotiations.

The good news is that due the fact that the UK will have to leave the Union, at the very latest, by end of March 2019, the anticipation for the EU nationals is almost over.

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