#BREXIT #EU Citizens Living in the #UK: A Self-Help Guide!

EU Citizens Living in the UK:  A Self-Help Guide ~ Adrian Berry, COSMOPOLIS, 7 September 2016.

Introduction

If you are an EU citizen living in the UK, these are worrying times. The BREXIT referendum on 23 June 2016 has led to uncertainty about what the future holds for you.

There are two things you can do:

(i)            Secure your position: by getting Residence documents and working towards the EU right of permanent residence (if you do not already have it), and

(ii)          Help lobby and influence the UK government: Join together with your fellow nationals (Germans, Swedes, Italians, Poles, etc.) and join a campaign online, through social media and in person, to ensure the widest possible retention of free movement rights.

Information on both is given below.

If you are part of a group or network of your fellow nationals and would like to hear more, either on securing your position or on lobbying the UK government, get in touch: I am happy to give a presentation or to come and discuss the issues. I can be contacted at adrianberry@globalmigration.london or send a message through my Facebook immigration blog page: Cosmopolis

This self-help guide is for you if you are (or are the family member of) a national of: Austria, Belgium, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Lichtenstein, Luxembourg, Malta, the Netherlands, Norway, Poland, Portugal Latvia, Lithuania, Romania, Slovakia, Slovenia, Spain, Sweden, or Switzerland.

Securing your position

For the moment the UK is a full member of the European Union (EU) and participates in the European Economic Area (EEA). The UK is also bound by EU arrangements with Switzerland.

Until the UK leaves the EU, which will be months if not years after it has triggered the Article 50 (of the Treaty on European Union) procedure, EU rights of free movement continue. There is time in which periods of UK residence may be built up on the way to securing a right permanent residence here. While there is no guarantee that if the UK leaves the EU, such rights will be respected, it is still sensible to do what you can to entrench your position. Analyse your position and prepare, if necessary, seek advice.

There are a number of key things you ought to think about doing:

1.     Documents: Get UK Home Office residence documents if you do not have them: (i) EU/EEA nationals exercising EU/EEA free movement rights in the UK may apply for a Registration Certificates, family members from countries outside the EU/EEA may apply for Residence Cards. –If you do not have, or have not applied for, residence documentation, you may be worse off if and when the UK leaves the EU. Remember also that residence documents are only evidence of a right, they do not confer it; you will have an EU right of residence because of what you do, not because the Home Office give you a document.

 Details on the procedure for securing residence documents may be found at:

 https://www.gov.uk/browse/visas-immigration/eu-eea-commonwealth

2.     Permanent Residence: Check to see if you have acquired the EU right of permanent residence in the UK and if so apply for a Permanent Registration Certificate (EU citizens/EEA nationals) or a Permanent Residence Card (non-EU/non-EEA family members).  – Those people who have acquired documents recognising permanent residence may be better off than those who have not, if and when the UK leaves the EU.

 3.     Keep a record of your time in the UK: If you are unsure about whether you have spent enough time in the UK doing things that give you a right of residence, write down a time-line or chronology of the time or times you have been in the UK, what you were doing and when you were doing it.

4.     Evidence: Keep all the documentary evidence you can about where you were living and when (tenancy agreements, utility bills, etc), what you were doing (for example records of work such as payslips or P60s, or study records from you school, college or university).

5.    Mind the gap: If there are gaps in the time you spent in the UK, or periods of time when you were in the UK not working, you may still have been enjoying an EU right of residence in the UK. Do not give up hope. Keep a careful record and seek advice.

 6.    Aggregation: remember that it may be possible to push periods of UK presence and/or activity in the UK together to builds up periods of time that enable you to acquire a right of permanent residence. Seek advice if unsure.

 7.     EU Permanent Residence in the UK: Permanent residence is usually acquired after five years exercising a right of free movement, though in some cases it may be acquired in less time, where you are approaching retirement, are permanently incapacitated or there has been a death in the family.

8.     The principle ways of exercising free movement rights/rights to reside are:

(i)            As a Jobseeker (a time-limited status)

(ii)         As a Worker/employee

(iii)         Some Workers, may retain worker status when no longer working for periods of time. You may need specialist advice if you think this may apply to you.

(iv)         As a  Self-employed person

(v)          As a  Self-sufficient person (such a person needs comprehensive sickness insurance: this can be private health care, or in some cases public health care rights from your home country. This is a complex area on which you may need advice)

(vi)         As a  Student (as above, needs comprehensive sickness insurance)

(vii)       As a family member (of any nationality) of an EU citizen/EEA national who is exercising free movement rights: (1) spouses, (2) civil partners, (3) children and grandchildren(descendants) under 21 or if 21 and over where dependent, dependent parents and grandparents (relatives in ascending line)

(viii)      An an extended family member (who will need Home Office residence documents to confer the right): (1) any relatives who dependents or members of an EU citizen/EEA national’s household, (2) a relative of an EEA national or his spouse or his civil partner and, on serious health grounds, strictly requires the personal care of the EEA national his spouse or his civil partner, (3) a relative who would satisfy the dependant relative under UK Immigration Rules, (4) anunmarried partner in a durable relationship with an EU citizen/EEA national.

(ix)         With retained rights of residence as a family member: on the death, divorce from, ordeparture from the UK of the principal EU citizen/EEA national exercising free movement rights,

(x)          Holding derivative rights of residence: where your presence is required as the primary carer of child, so that the child can reside in the UK (for example because she is self-sufficient or in education as the child of a former worker) exercising free movement or other EU rights.

9.     In a relationship with a British citizen: If you are lucky enough to be in a relationship with (or are a family member) of a British citizen, you may not readily be able to get an EU residence document by virtue of that relationship and you may have to rely on your own activity (for example work or study) – but check to see if your British citizen spouse, partner, or family member has resided in another EU state for any length of time; if they have, seek specialist advice.

10.  Eastern Europeans: If you have lived in the UK during the first seven years of your country joining the EU, you may be able to count that time towards the five years necessary to acquire permanent residence but it will depend on what you were doing in that time and in some cases on whether you had the correct residence documents at that time. Seek specialist advice. This applies to nationals of the Bulgaria, Croatia, Czech Republic, Estonia, Hungary, Poland, Latvia, Lithuania, Romania, Slovakia, and Slovenia.

11. Providing/Receiving Services: If you are providing (or indeed receiving) services temporarily on a commercial basis in the UK, you may be exercising a right of free movement. This is a poorly understood area and specialist advice will be needed.

12. Posted Workers: If you are not an EU citizen/EEA national and are form a country outside the EU/EEA but you have been living and working in another EU state, only to be posted temporarily by your employer into the UK, you may have a right of residence for certain purposes.

13. Becoming a British citizen: Once you have acquired a Permanent Registration Certificate, or a Permanent Residence Card, you may wish to apply for naturalisation as a British citizen in order to ensure your entitlement to come and go from the UK and to live and work here without restriction. The naturalisation process has its own requirements, procedures and forms, see:

 https://www.gov.uk/becoming-a-british-citizen/how-to-apply

Two words of caution:

(1) Check to see whether becoming a British citizen will lead to the loss of your own nationality and consider your position, some countries are intolerant of multiple nationality; and

(2) The UK Home Office considers that dual nationals, where one of those nationalities is British citizenship and the other is nationality is that of another EU/EEA country, may not benefit from EU/EEA free movement rights, so any family members dependent on you exercising free movement rights will lose their right to rely on EU/EEA law if you become a British citizen. There is a legal challenge to the Home Office stance in the courts but for the moment, take care.

 Help lobby and influence the UK government

 Join together with your fellow nationals (Germans, Swedes, Italians, Poles,  etc.) and join a campaign online, through social media and in person (through meetings, and marches, etc.), to ensure the widest possible retention of free movement rights. In any campaign, you may wish to stress the contribution (economically, culturally, socially) your community makes to the UK and how the UK will be the poorer if your lives are made more difficult by BREXIT.

 If and when the UK leaves the EU, there are a number of possible immigration systems that may apply: (1) strict immigration control, (2) free movement or as close to current free movement as possible, or (3) a particular mixture of the two. We cannot be sure what will happen. Here are some issues that you may wish to consider campaigning on as part of what you would like to see, if and when the UK leaves the EU:

1.     The preservation of rights already acquired and transitional protection for rights in the process of being acquired

2.     Visa-free access to the UK

3.     A right of admission on arrival in the UK

4.     No conditions of entry to be stamped in your passport and no conditions placed on entry or residence

5.     A general authorisation to work in any job, as a national of an EU/EEA state

6.     No restrictions on access to social assistance (EU citizens working in the UK pay tax and national insurance)

7.     An entitlement to seek work

8.     The freedom to be self-employed

9.     No requirement for a work permit

10. No requirement to hold a residence permit

11. An entitlement to acquire permanent residence after five years, or earlier in some cases (as now)

12. The right to be accompanied by your family members

13. Protection against expulsion from the UK to be maintained at the EU standard

14. Access to Social Security rights (for example contribution based benefits) and health care on the same basis as at present

15. Access to cross border health care rights, for example the EHIC card,

16. No cap on numbers of EU citizens permitted to come to the UK

17. No language and/or integration tests to be imposed

18. At a minimum, reciprocity, so you get no less than what a British citizen will get when she travels to the remaining EU/EEA countries

EU Referendum European Union Brexit 

________________________________________________________________

Image result for brexit 
Image result for brexit

___________________________________________
September 2016

August 2016

June 2016

May 2016

March 2016

November 2015

October 2015

House of Commons Public Bill Committee : Immigration Bill (22 October 2015)publications.parliament.uk
Parliamentlive.tvparliamentlive.tv
British Citizenship by Descent:Trial and Error

A child born outside the UK (and all but one of the British overseas territories) to a British citizen (by birth, adoption, naturalisation or – in many cases – registration) parent automatically acquires British citizenship by descent at birth by operation of law. However that person may be unknown to authorities in the UK or to British consular officers overseas. When that person seeks to prove that he or she is a British citizen or seeks a UK passport as a British citizen what evidence is he or she required to adduce and what reception can he or she expect from British consular authorities?

The case of R(Bondada) v Secretary of State for the Home Department [2015] EWHC 2661 (Admin), High Court,  (15 October 2015), in which I acted as counsel for the Claimant, examines the hurdles faced by a British citizen by descent trying to secure a UK passport. The Claimant (a survivor of domestic violence, looking to rebuild her life) vindicated her position and secured a declaration that she was a British citizen by descent. However, it is the stance of the British consular officials, exercising passport functions, as to what evidence was required to prove citizenship and what approach should be taken to that evidence that is of wider public interest.

The British officials processing Ms Bondada’s application had prescribed certain forms of documentary evidence that were required before it could be accepted that her identity was as claimed and that she was a British citizen by descent. In addition they had limited the use of DNA evidence so as to exclude from consideration privately commissioned DNA evidence that they had not requested. Ms Bondada could not comply with the laundry list of prescribed evidence, as some documents had been lost in the decades since her birth in India in the 1960s.

Notwithstanding that, she had privately commissioned DNA evidence that she was the biological daughter of her Indian mother and one of a set of full siblings. DNA evidence from her late father (the British national parent) was not available, nor was his passport from the time he traveled to India to visit her mother, during which visit Ms Bondada was conceived. However her father was named in other documentation relating to her. In the late 1970s she had visited the UK traveling with her mother, at which time she had been included in the latter’s Indian passport. Mother and daughter were granted entry clearance by UK officials and had been admitted to the UK as spouse and daughter respectively of a British national.

On the evidence available, for her not to have been born (legitimate) to her British national father, her mother would have had to have had a secret lover who had fathered each and every child during her parents’ marriage. Such was the UK official position. Unsurprisingly, the Claimant considered that she could easily prove her case. The Court agreed describing the conduct of the UK government as ‘astonishing and grotesque’.

The case is useful for re-enforcing the following points:

1.              Where a person has automatically acquired British citizenship by descent and seeks recognition of the same or a UK passport, the Home Office does not confer or grant British citizenship, instead it recognises a position subsisting in law,

2.              There is no list of acceptable evidence prescribed by law that must be adduced to prove citizenship,

3.              DNA evidence may be adduced and advanced irrespective of any policy of UK officials as to when such evidence will be considered,

4.              Any failure by an applicant to answer the questions asked by consular officials at interview need not be decisive,

5.              Minor discrepancies in documentary evidence need not be material,

6.              Where an application is rejected, an applicant may apply to the High Court for a declaration that she is a British citizen,

7.              It is for the Court to decide whether or not she is a British citizen following trial of the issue,

8.              At trial, she who asserts, must prove her case on the balance of probabilities,

9.              Oral evidence from witnesses may be advanced at trial. Even where, as here, the claim proceeds in the Administrative Court, the case is not a judicial review but rather a trial of the issues.

Perusal of the judgment reveals a dispiriting approach taken by UK consular officials to the task in hand. Around the world there are millions of British citizens by descent, many of whom may struggle to prove their citizenship and secure passports, protection and assistance from UK officials where needed. This judgment shows the benefits of persevering.

The legal team consisted of myself, as counsel for the Claimant, together with Graeme Kirk of Gross and Co as solicitor for the Claimant.

1 note
#british nationality law #british citizenship #passport
Europe: Kim v Russia – The unlawful detention of Stateless Persons in immigration proceedings

The judgment of the First Section of the European Court of Human Rights (‘the ECtHR’)  on 17 July 2014 in the case of  Kim v Russia (Application no. 44260/13)  increases the visibility of the plight of stateless persons who are detained for immigration control purposes. A stateless person  holds the nationality of no country. Such a person may be detained in the country in which he or she resides,  using immigration powers,  for the purposes of expulsion for want of status there. Yet to which country may he or she  be expelled? Who would be obliged to admit him or her  as he or she belongs to no country? How does his or her want of nationality affect the lawfulness of his or her detention for immigration purposes? These issues, among others, may be distilled from Mr Kim’s case. Ordinarily where a non-national is expelled from a host country to the country of his or her nationality, the latter country is obliged to admit him or her. But where there is no such country and where there is  no third country to which there is reason to believe he or she would be admitted, what is to be done? Expulsion is not possible, so detention for such purpose may be said to be arbitrary.

Mr Kim was born in the Uzbek SSR during the Soviet era. By 1990 he was living in St Petersburg. On the dissolution of the USSR the state in which he lived was therefore the Russian Federation. As a result of want of provision in the laws of the states established on the dissolution of the USSR, he acquired the nationality of no new state and was therefore a stateless person. This juridical fact was to condition his subsequent detention and the assessment of  the compatibility of his detention with the fundamental rights protected in the European Convention on Human Rights (‘the Convention’).

Mr Kim had been detained in Russia for want of identity papers and convicted and fined for an administrative offence in respect of the same. Having been registered last as resident in Uzbekistan, he was detained by the Russian authorities with a view to his expulsion there as a national  of Uzbekistan. For the first four months of his detention no steps were taken to contact the competent authorities in Uzbekistan to seek confirmation of his nationality. Thereafter a number of letters were sent to the Uzbek Embassy without the courtesy of a reply being received. During this time no active steps were taken to chase the Uzbek authorities. Further, Mr Kim, in common with others detained in Russia in similar circumstances remained in detention without ready access to a meaningful process of judicial review to secure his release from detention. Eventually after over a year and a half since his initial detention, the Uzbek authorities, having been chased by Mr Kim’s own lawyers, confirmed that he was not recognised by them as one of their nationals. Despite this Mr Kim continued to languish in detention, only securing his release when the statutory two-year time limit for detaining persons for expulsion was reached. Throughout the whole period of his detention he was kept in squalid, overcrowded, conditions in a place only ever designed as a  short-term holding facility.

Mr Kim petitioned the ECtHR alleging violations of rights protected under the Convention. He contended that the conditions of his detention constituted a violation of article 3 of the Convention as they amounted to inhuman and degrading treatment. The Court agreed. Russia is used to losing article 3 cases at the Court in respect of  the conditions in its detention estate. In this case it accepted that there had been such a violation.

The real interest in the judgment  as regards Mr Kim’s treatment as a stateless person comes in respect of article 5 of the Convention and the right to liberty and security. Mr Kim alleged a breach of article 5(4) of the Convention as he lacked speedy access to an effective judicial review procedure to enable him to attempt secure his release. He argued, among other things, that such a procedure would have been of particular benefit in his case as once the Uzbek authorities had confirmed that he was not a national of their country, there would have been a change of circumstances and no reasonable prospect of removal. In respect of the whole period of his detention he argued that he lacked meaningful access to a judicial remedy to secure his release. The Court agreed. As with article 3 cases in respect of conditions of detention, Russia is used to losing article 5(4)  cases at the Court in respect of access to judicial review for a person seeking to challenge his or her detention. In this case it accepted that there had been such a violation.

Mr Kim also argued that his detention was unlawful by reference to article 5(1)(f), as although he has been detained for the purposes of deportation/expulsion, his detention had been arbitrary as inadequate efforts had been made to secure his admission to Uzbekistan, leading to an extended period in detention. Russia conceded that there had been a breach on article 5(1)(f) for the period from the point when the Uzbek authorities had notified their Russian counterparts that he was not recognised as an Uzbek national, however, it did not concede that he had been unlawfully detained throughout the period of his detention.

The Court found a violation of article 5(1)(f). It was critical of the lack of vigour with which the Russian authorities had pursued  the Uzbek authorities and the want of any attempt to negotiate Mr Kim’s return. The Court rehearsed its position that article 5(1)(f) may no longer be relied upon where it is no longer feasible to expel a person and reiterated its view  that the  authorities had an obligation to consider whether removal is a realistic prospect and whether detention with a view to removal is from the outset, or continues to be, justified. In this context the absence of an effective remedy to secure release from detention was of significance. There was no mechanism capable of preventing the risk of arbitrary detention.

Of particular interest is that the Court was seized of Mr Kim’s vulnerability to violations of his human rights on account of his statelessness. Unlike nationals of other countries he could not benefit from consular assistance. He lacked material resources and family connections in Russia  and had difficulty in securing legal representation. As a person who, in the result, could not be expelled to another country, there was a concern that the Russian authorities had not accelerated proceedings to ensure protection of his right to liberty.  The Court was also concerned that the period of detention for expulsion far exceeded the period that he could be detained for as a punishment for his related  administrative offence.

In considering matters as a whole what is of especial  value for advancing the cause of stateless persons is the recognition by the Court that statelessness affects the point at which detention for the purposes of expulsion becomes arbitrary and therefore unlawful. It may clear at an early point that detention of a stateless person for expulsion is arbitrary as there is no realistic prospect of removal because  the person is stateless. An early appreciation that a person so stateless may prevent further unlawful detention (where a foreign national might continue to be detained as part of efforts to secure his or her re-admission to the country of nationality). The juridical fact of statelessness conditions the application of article 5 of the Convention and helps to secure the release of the person concerned from detention.

Having found violations of the Convention, the ECtHR went on to award €30,000 for non-pecuniary damages and to make finding as to the general measures called for in the execution of the judgment in order  to prevent future violations. The Court considered that Russia had to introduce a mechanism to permit persons detained for expulsion to challenge their detention in order to avoid violations of article 5(4) of the Convention. Such measures needed to have a  judicial character and to  provide guarantees appropriate to the type of deprivation of liberty in question. As regards article 5(1)(f) the Court also considered that Russia needed to envisage taking  necessary general measures to limit the period of  detention periods so that it remained connected to the ground of detention applicable in the immigration control context.

As regards Mr Kim personally, the Court was careful to note that not only was he stateless, he also had no fixed residence or identity documents (not an uncommon situation for stateless persons). As a result of his irregular immigration position, he was at risk of further prosecution for future want of documentation. To guard against this the Court considered that it was incumbent on the Russian government to take steps to prevent Mr Kim from being re-arrested and detained for offences occasioned by virtue of his status as a stateless person. The Court’s concern to bring to an end the difficulties caused by Mr  Kim’s status as a stateless person shows an awareness and sensitivity to the situation of stateless persons in host countries. A need for identity documents to secure residence, work, social assistance and avoidance of criminal penalty, places the stateless person who cannot secure such documents for want of the nationality of the host state or any other state, at a peculiar disadvantage. What is heartening is that the Court appreciated this and took the initiative to mitigate that disadvantage.

The Judgment in Kim  is a step-forward for securing the human rights of stateless persons. It demonstrates the utility of human rights protection, not least in a state that is not bound by the 1954 Stateless Persons Convention and its standards of protection. The judgment has obvious utility for all detained stateless persons, where the decision to detain or to maintain detention is conditioned by the status of the person concerned as stateless. The judgment allows the detention of stateless persons for expulsion purposes  to be characterised as arbitrary at an early stage of detention and proves the value of assessing whether a person is stateless a the earliest possible moment and irrespective of whether or not there is a statelessness determination procedure. It is to be welcomed.

(This post first appeared on the European Network on Statelessness Blog www.statelessness.eu@ENStatelessness)

#statelessness #europe #detention #immigration
12/10/2015, Afternoon Edition – BBC Radio 5 livebbc.co.uk
#refugees #European Union #UK immigration
Deprivation of Nationality and Citizenship -The Role of EU Lawsprc.info
#statelessness #European Union #nationality #citizenship

September 2015

Child Statelessness in Europe

The 1989 UN Convention on the Rights of the Child (‘the 1989 Convention’) requires States Parties to ensure the right of every child to acquire a nationality. Notwithstanding this obligation, incidences of child statelessness remain in Europe and in that regard European states have failed to live up to their international commitments.

A want of nationality means that a child has no home in the world to which he or she belongs as of right. Moreover, as a result, often that child will lack access to rights, services, standards of protection and the tools necessary to ensure a life lived in dignity with opportunity for personal development.

Surprisingly, there are hundreds of thousands of stateless persons in Europe and statelessness is often passed down from parent to child without action being taken by states to ensure that a durable solution is found by way of acquisition of nationality.

It is not hard to make provision to eliminate existing incidences of statelessness and to ensure that prospective cases do not arise. However, it will take concerted effort by states to make revisions to their respective national laws and administrative procedures and practice.

At the heart of such an exercise is the core task for each state to ensure that all children born stateless on its territory automatically acquire its nationality at birth by operation of law, or as soon as possible afterwards. This is consistent with the 1989 Convention (articles 3, 7), whereby the best interests of a child are a primary consideration when making provision for a child to acquire a nationality.

Moreover, as the excellent European Network on Statelessness (‘ENS’) report http://www.statelessness.eu/sites/www.statelessness.eu/files/ENS_NoChildStateless_final.pdf” No Child Should Be Stateless(September 2015) advocates, further special measures are required of states, to ‘actively facilitate access to nationality where statelessness arises, including the enhanced identification of relevant cases, in order to avoid such scenarios as where a child is labelled as being of “unknown nationality” for a prolonged period of time.’

In addition the report recommends improvements to the provision of information on applicable nationality procedures to those affected, as well as the resolution of the structural problems that inhibit the enjoyment of nationality, for example through the identification and elimination of barriers that restrict access to birth registration for groups vulnerable to exclusion from belonging to the country in which they are present.

Among the groups at particular risk of statelessness, the report identifies:

· Children born to irregular migrants or to Refugees

· Children of same-sex couples

· Children commissioned by European parents through international

commercial surrogacy, and

· Children who have been abandoned

Among the recommendations to governments found in the report, the following stand out as particularly important:

· To design and implement a National Action Plan as part of UNHCR’s #ibelong campaign, which seeks to eradicate statelessness by 2024

· To accede to the 1961 Convention on the Reduction of Statelessness and the 1997 European Convention on Nationality

· To implement measures to fulfil children’s right to a nationality, in accordance with article 7 of the 1989 Convention and General Comment No. 5 of the Committee on the Rights of the Child. Such measures may include:

(i) The removal of any reservations to the relevant treaties

(ii) Legislative review and reform in accordance with international

standards and principles

(iii) Child Rights Impact Assessments

(iv) Outreach and information campaigns

(v) Collaboration with civil society and international cooperation.

· To review and improve data collection and reporting methods relating to childhood statelessness, including birth registration, disaggregating such data by age and gender

· To build the capacity of relevant administrative and judicial bodies (by training among other things) to identify and address situations of childhood statelessness and to ensure that actions are taken in accordance with relevant international standards, jurisprudence and related authoritative guidance of international bodies such as the Committee on the Rights of the Child and UNHCR

The report identifies tasks that are urgently required to eliminate and prevent statelessness throughout European states, whether it occurs among the settled population or among those who have migrated into a state. Its recommendations deserve urgent consideration.

#stateless #nationality #statelesskids
UK: Female EU citizens retain ‘Worker’ status for a year when off work for Pregnancy/Maternity-related reasons

The judgment of the Upper Tribunal in SSWP v SSF and others [2015] UKUT 0502 (AAC) (10 September 2015) establishes that female EU citizens may, ordinarily, expect to retain ‘Worker’ status for a year when off-work. This means that they will continue to be lawfully resident during that time, having exercised rights of free movement to migrate to the UK, and be able to access the full range of social security and social assistance benefits that impose a right to reside test. Such benefits include income support and housing benefit.

Although the case was heard in the Administrative Appeals Chamber of the Upper Tribunal (as it was a social welfare case), it may deployed in immigration cases in the First-tier Tribunal and Upper Tribunal and in applications to establish a right of residence under the Immigration (European Economic Area) Regulations 2006.

The case analyses and applies the Court of Justice of the European Union (CJEU) case C-507/12 St Prix v Secretary of State for the Work and Pensions  [2015] 1 CMLR 5. It moves the position on from that case, as it concerns women who needed to establish 52 weeks (1 year) of retained Worker status while pregnant and in period following birth.  St Prix was concerned with a woman who only needed 26 weeks (½ a year) of retained Worker status.

The CJEU in St Prix held that:

Article 45 TFEU [providing for free movement of EU citizen workers] must be interpreted as meaning that a woman who gives up work, or seeking work, because of the physical constraints of the late stages of pregnancy and the aftermath of childbirth retains the status of ‘worker’, within the meaning of that article, provided she returns to work or finds another job within a reasonable period after the birth of her child.

This form of retained ‘Worker’ status may usefully be called a ‘St Prix right’.

The new Upper Tribunal case of SSWP v SSF and othersestablishes the following propositions:

1.     A St Prix right may be established prospectively as well as retrospectively. This means that a woman applying for a social welfare benefit at the outset need not prove that she will, or that she did, return to work or find another job within a reasonable period after the birth of her child. It is sufficient for her to have an intention to do so. However, the accrual of the St Prix right on this basis does not mean that recognition of the right may not be terminated later on, looking forward for the period after a reasonable period is deemed to have passed.

2.     The St Prix right starts, ordinarily, 11 weeks prior to the expected date of birth but this starting point may be displaced in particular cases.

3.     The reasonable period to retain the St Prix right is, as a matter of practice, 52 weeks (1 year). The Government/Secretary of State had argued for 26 weeks (½ year) so this is a major victory on behalf of female workers. In the circumstances of a particular and unusual case the period may be longer.

4.     A woman who had already retained Worker status (as a former Worker who was job-seeking) before she became pregnant (i.e. under article 7(3) of Directive 2004/38/EC), may enjoy the St Prix right during her maternity period and exit that period and enjoyment of the St Prix right by becoming a jobseeker who retains Worker status again  (as opposed to returning to work or finding another job) without compromising her enjoyment of the St Prix right during the period she needed to rely on it.

5.     The St Prix period counts towards the accumulation of lawful residence necessary to acquire an EU right of permanent residence.

The legal team for the Claimants was composed of myself, Adrian Berry, and Desmond Rutledge, as counsel, both from Garden Court Chambers, together with the solicitors Michael Spencer of Child Poverty Action Group (CPAG), Jacobo Borrero of Hansen Palomares, and William Ford of Osbornes.

#European Union #free movement #workers #maternity #pregnancy
UK: My Legal Opinion on landlord checks on the immigration status of occupiers, for ACF, (public document). It may help destitute migrants.acf.org.uk
#homelessness #migrants #uk immigration
Temporary Protection for Refugees: A European Solution?

Hundreds of thousands of refugees are making dangerous and hazardous journeys to safety in Europe. From Syria, Eritrea, Afghanistan, Iraq and elsewhere. In some EU countries the reception facilities and mechanisms for processing individual asylum claims have collapsed or are inadequate to the task. In many countries politicians compete to slough off responsibility or to blame governments in neighbouring states.

The Schengen Area that forms the core of a Europe without internal borders is blamed for allowing refugees to move to those places where they feel most safe and where they consider assistance will be greatest. Conspicuous by its absence is a pan-European effort, motivated by an appreciation of our common humanity and the need for solidarity in the face of demonstrable suffering, to make common cause and to share the burden of providing protection and assistance to desperate people. The case for a co-ordinated response by the EU and its member states is clear. Happily the tool exists to provide the protection and assistance that these refugees and other displaced persons require, as well as to enable the sharing of the burden and privilege of doing so fairly among EU countries. All that is required now is the political will to use it.

The point is that we have been here before. Refugees flowed into western Europe in the late 1990s as a result of conflict in the Balkans. In former Yugoslavia tens of thousands of people were forcibly displaced from Kosovo at Serbian hands and forced to make hazardous journeys as they travelled across borders to safety. Many fled to western European countries. In many states the facilities for the reception of refugees were overwhelmed. Procedures for the refugee status determination of individuals were placed under severe strain. The case for a pan EU effort was clear. Lessons were learned.

In 2001 the EU came up with its ‘Temporary Protection Directive’ (2001/55/EC) to deal with the problem of a mass influx of refugees and displaced persons in case it happened again. Thus the EU and its member states have a tool to provide humanitarian protection to groups of refugees and displaced persons. All that is required is a decision by the Council of Ministers – an EU body composed of representative ministers from each EU country – to invoke it. Political will is required.

The Temporary Protection Directive is designed to cater for a mass influx of displaced persons including refugees who cannot return to their country of origin. It is conceived as an exceptional scheme to provide temporary protection for a limited period of time. It aims to share the burden of protection among EU countries and to provide minimum standards applicable in each state providing such protection. It is designed with the intention of being compatible with the 1951 Refugee Convention and with the right of each state to confer asylum on an alien (non-national) present on its territory.

Of particular note is that it caters not only for displaced persons who have had to leave their country or region but also for those who have been evacuated from their home country or region. As a a result it is broad enough to cater not only for those refugees who have made difficult and dangerous journeys to the external borders of the EU but also for those who are forcibly displaced within their own country or to an insecure neighbouring country but who may be spared a dangerous irregular journey to the borders of the EU by being given humanitarian visas and transport (as part of an evacuation programme) to make that journey in safety. Thus a person who has fled persecution in Syria may be spared death by drowning in the Mediterranean Sea if the Temporary Protection Directive is accompanied by an active programme of humanitarian evacuation and admission to the territory of the EU.

For the Directive to apply there must be a mass influx of people (i.e. a large number of displaced persons) who have come from a specific country or a defined region. Thus it is not difficult for a Temporary Protection regime to cater for people coming from the main refugee producing states such as Syria.

The grant of temporary protection under the Directive does not preclude determination of Refugee status under the 1951 Refugee Convention but may postpone it until the end of the period of temporary protection. In the meantime the persons protected are granted residence permits for a year, with the possibility of further extensions for up to two further years.

As noted temporary protection may only be granted following a declaration by the Council of Ministers that there is a mass influx of displaced persons. Interestingly unanimity is not required and the decision may be made by a qualified majority. Thus a recalcitrant state that objects cannot stand in the way of the use of the Directive.

Once made, the decision by the Council of Ministers invokes a temporary protection regime. The decision must describe the specific group of groups of persons to whom the temporary protection regime applies, the date on which the protection regime begins, and information on the reception capacity of EU countries (so as to further burden sharing).

Once the decision to invoke a temporary protection regime has been made, provision is made to determine which people fall within its terms of reference and are to be given temporary protection as a result. The procedure is supposed to be simple and straightforward without the complex assessment of risk of persecution for specified reasons that characterises the Refugee Convention status determination procedure typically applied to individuals seeking asylum in EU countries.

In addition to residence permits, beneficiaries of temporary protection have rights to work, access to social assistance, accommodation rights, access to health care, and education rights. Special provision is made for unaccompanied minors and for family reunion. Provision is also made for return to the country of origin when protection is no longer required.

As regards the burden sharing among and between EU countries, provision is made for payments to be made to individual EU countries from the common European Refugee Fund. EU countries are to receive persons in receipt of temporary protection (from other EU countries and from any evacuation programmes bringing displaced persons into the EU in safety) in a spirit of solidarity and according to their capacity. Thus large states such as Germany and the UK would be expected to play a major role.

As regards security concerns, the Directive makes provision for the exclusion of persons who present risks to national security, the community and so on in terms that track similar exclusionary provisions in the 1951 Refugee Convention.

The UK has opted-in to the Temporary Protection Directive and has made provision to give it effect in Part 11A of its Immigration Rules. The existence of the Directive provides a golden opportunity for political leadership by the governments of EU countries. With political will, rooted in common humanity, and with the degree of moral courage necessary to face down those unwilling to protect and assist destitute people fleeing persecution, it is possible for a regime to be invoked across Europe that both funds and shares the burden of helping those who have made dangerous journeys to Europe, as well as those displaced persons who can be evacuated from places such as Syria and Turkey and so avoid risking drowning in the Mediterranean Sea. The case for the use of the Temporary Protection Directive is compelling.

I am indebted to Syd Bolton, who provided the inspiration for this article and whose work on behalf of refugees and other displaced persons is peerless.

#europe #refugees #protection
My BBC World Service interview on the EU and Refugeesbbc.co.uk
#BBCNews #Refugees #europe

August 2015

My Al Jazeera interview on Europe’s Refugee crisisaljazeera.com
#Refugees #Migrants #Europe

July 2015

Does the Work Permit number limit harm the UK economy?

Recent economic recovery and developing economic trends in the UK have seen the monthly allocated number of work permits (technically the number of restricted certificates of sponsorship under the Tier 2 (General) scheme available for issue in respect of persons seeking entry to the UK to work in a job with an annual salary of less than £155,300) being fully subscribed or almost fully subscribed, putting pressure on the annual cap on the number of work permits for the first time since the cap was introduced after the Conservative-Liberal Democrat Coalition government took office in May 2010.

The annual cap on the number of such work permits is set at 20,700. The cap was introduced at a time when steady growth in the UK economy was conspicuous by its absence and the fact that the monthly limit has not been reached before now is unsurprising. It also means that – thus far – the cap has played no meaningful role in controlling the numbers of people migrating into the UK. In any event Tier 2 (General) (even allowing for the admission of dependent family members of work permit holders) makes a relatively modest contribution to overall net migration to the UK. In the calendar year 2014 net long term migration to the UK was 318,000, with inward migration being 641,000 (source: Office for National Statistics). Set against these figures an annual subscription of 20,700 work permits is small beer.

The cap on work permits is a political choice arising out of a party political commitment to bring annual net migration down to the ‘tens of thousands’ over the lifetime of the 2010-2015 parliament. However as net migration includes those who may enter the UK as of right in order to work, including British citizens resident overseas and EU citizens/EEA nationals, this political target has proven harder to hit in practice than perhaps was initially anticipated.

The initial case for a cap in the national economic or social interest does not appear to have been made as a result of an intensive period of research or after gathering and analysing evidence. Such consideration as to the effect of a cap as was undertaken by the Migration Advisory Committee (MAC) occurred after the government had already announced that an annual cap would be introduced. The MAC addressed itself to the potential impact of a cap in that context, with the focus being on how best to make use of migration routes in the certainty of there being a cap, see ‘Limits on Migration for 2011 to 2012: Tier 1 and Tier 2’https://www.gov.uk/government/publications/limits-on-migration-for-2011-to-2012-tier-1-and-tier-2 This wide-ranging survey, weighing in at 334 pages, considered the issue at large from a variety of angles. However, it remains the case that the role of any cap or even this cap as a tool of social or labour market protection is by no means clear.

As already noted, the monthly allocation target has only been put under pressure recently, so it is impossible to say what the impact of the cap has been hitherto. Further, the resident population are protected from labour market competition from inward migrants in any event by the need for a company sponsoring a work permit applicant to undertake a Resident Labour Market Test, whereby an employer/sponsor needs to show that there is no suitably qualified worker from the UK or the EU/EEA available to fill the specific vacancy. Employers are required to advertise the relevant vacancy. In addition, work permits are only available to those who satisfy minimum skills thresholds and to those who will earn a salary at or above rates prescribed on an occupation by occupation basis. In that context, one might very well ask, if there is already protection for the resident population from competition from migrant labour, what is the point of the cap in economic or social terms?

In its 2015 General Election manifesto, the Conservative party committed itself to the maintenance of the 20,700 annual cap throughout the lifetime of this parliament. However, now that the monthly allocation or work permits is being reached and given that vacancies in the economy continue to grow, there is some anecdotal evidence that the cap may be harming – and may continue to harm – UK economic and social interests and that accordingly, it may damage the national interest.

A concern is that the cap will inhibit economic recovery in sectors of the economy and in regions that have the potential to drive economic growth. Among those persons unable to secure work permits as a result of the monthly cap allocation being put under pressure are engineers, teachers, IT workers, architects, tech company staff, nurses, healthcare professionals and those working in creative industries. Some would work in small and medium sized enterprises and start ups on modest salaries, some would work in the north of England and in Scotland where salaries are lower. When the cap is reached, those applicants whose prospective salary is lower or whose skill level is less are disadvantaged in the allocation criteria that rations work permits as compared to those with potentially higher earnings or those with higher skill levels but who are in other occupations.

Accordingly, small-scale entrepreneurial businesses with potential for growth and parts of the UK where salaries are lower are disadvantaged. Is this a sensible way to support economic recovery?

Further, while immigration may be a matter reserved to the Westminster parliament, the operation of the allocation criteria for work permits may be a subject of concern to the Scottish government among others in this context. The other devolved administrations in Wales and Northern Ireland and certain English regions may feel similarly.

In addition, across the UK work permit applicants in the caring professions, such as nurses and other health care professionals, often on modest salaries are disadvantaged in the allocation criteria. Whether it is sensible to for social need to be unmet as a result of rigidities in work permit allocation criteria deserves consideration.

The general question to consider over the lifetime of this parliament from 2015-2020 is whether the commitment to maintain the cap at 20,700 will produce effects that are damaging to the national interest as the economy recovers and whether it will inhibit recruitment to the caring professions. In July 2015 the MAC has launched a call for evidence in relation to the operation of Tier 2, see https://www.gov.uk/government/consultations/call-for-evidence-review-tier-2-route It is due to report by mid- December 2015. However the questions canvassed above do not appear to feature in its brief. It may be that such question need to be addressed to the government by the sectors of the economy that are affected and by the national devolved administrations and the English regions concerned.

#UK Immigration #Work Permits #Tier 2 (General) #Economic Migration #Annual cap on migration

June 2015

UK Remaining Gender Discrimination in British Nationality Law

Prior to 1983 British nationality law provided for the acquisition of British nationality by descent from a father but not from a mother and for acquisition of British nationality generally in the paternal line rather than the maternal line. For those born from 1983 onwards this prejudicial practice has been eliminated. Further, for persons born prior to 1983 the British Nationality Act 1981 (the 1981 Act) now provides a process for a person born to a female Citizen of the United Kingdom and Colonies (CUKC) or British subject, on application, to register as a British citizen by entitlement, where that person would have acquired British nationality by descent or automatic reclassification prior to 1983 but for gender discrimination. Sadly a problem remains.

Summary of the problem

The problem today is that there are people born outside the UK prior to 1983 who would have been British citizens today if they had had a paternal grandfather born in the UK, or who would have been able to become British citizens by registration today if they had had a maternal grandfatherborn in the UK, instead of a paternal grandmother or maternal grandmother so born.This is gender discrimination by reference to the gender of the grandparent.

The problem in outline is as follows:

  • prior to 1983,  the transmission of British nationality by descent to those born outside the UK and Colonies (under s 5 of the British Nationality Act 1948) (prior to 1949 outside His Majesty’s dominions, see British subject status by descent under the British Nationality and Status of Aliens Act 1914, s 1)  was via thepaternal line but not thematernal line (additionally, even in the paternal line,  a child had to be born legitimate  – or be subsequently legitimated – for transmission of nationality to occur),
  • prior to 1983 transmission of nationality by descent in thepaternal line occurred automatically to the first generation born in foreign countries, and, in certain cases automatically and in certain cases conditionally, to the second generation so born and to further generations so born;
  • thus, for example, transmission of nationality by descent was possible and indeed occurred, where a person born outside the UK and Colonies (or, pre-1949, His Majesty’s dominions) whose father was also so born, had a paternal grandfather born in the UK (transmission to the second generation in thepaternal line);
  • as transmission of nationality to those born outside the UK and Colonies (or, pre-1949, His Majesty’s dominions) was not possible in the maternal line, transmission was not possible via a mother born in the UK (i.e. to the first generation) or via a mother born outside the UK and Colonies to a father born in the UK (i.e. to the second generation); however, subsequently, provision to eliminate the continuing effect of such discrimination  has been made by providing a route to registration as a British citizen under s 4C of the 1981 Act;
  • as transmission of nationality to those born outside the UK and Colonies was not possible in the maternal line, transmission was not possible via a paternal grandmother born in the UK, or via a maternal grandmother so born;  the effect such gender discrimination has yet to be eliminated;
  • further, in the era of decolonisation after the Second World War, the question for nationality purposes of who ‘belonged’ to the UK, as opposed to a colony or former colony, was answered in UK immigration law through the statutory concept of the right of abode. British nationals/CUKCs who had a relevant link to the UK via a parent (first generation) or a grandparent (second generation),regardless of whether that parent of grandparent was male or female), were recognised as having a right of abode in the UK;
  • On commencement of the1981 Act on 1 January 1983, those CUKCs with a right of abode, including those who had such a right as a result of a relevant link to the UK via a grandparent (i.e. two generations back) were re-classified as British citizens. Those persons born overseas who may have such a relevant link via a grandparent (i.e. two generations back) but who lacked CUKC status prior to 1983, because such status only transmitted in the paternal line, were not made British citizens. Thus the pre-1983 discrimination in the transmission of nationality was reflected in and preserved by the allocation of British citizenship on commencement of the 1981 Act;
  • For persons born outside the UK and Falkland Islands from 1983 (and born outside the qualifying territories – i.e. the British overseas territories other than the Sovereign Base Areas in Cyprus –  from 21 May 2002), transmission of British citizenship may occur throughboth the paternal and the maternal line, see s 2(1) of the 1981 Act.

There is no justification for any continuing prejudice arising as a result of the gender discrimination in the pre-1983 law, not least when steps have been taken to rectify the position so that there is access to registration as a British citizen under s 4C of the 1981 Act to put (i) those born prior to 1983 in a foreign country to amother born in the UK are on the same footing as those so born to a father born in the UK, and to put (ii) those born prior to 1983 in a foreign country to amother born in a foreign country whose own father was born in the UK are on the same footing as those so born to afather born in a foreign countrywhose own father was born in the UK.

There is continuing prejudice arising from the effect of gender discrimination in the pre-1983 law that registration as a British citizen as provided in s 4C of the British Nationality Act 1981 does not eliminate. This is an unresolved matter. The effect of gender discrimination in the pre-1983 law has been reduced but not eliminated. This is inconsistent with universal human rights standards found in the 1979 UN Convention on the Elimination of Discrimination against Women.

Winners and losers in the current arrangements

Who wins and who loses at present?

  •  Given that British nationality law prior to 1983 transmitted via the paternal line to the second generation and beyond to those born in foreign countries;
  •  Given that there was gender discrimination in the pre-1983 law as regards transmission of British nationality;
  •  Given the legislative policy marker set by s 2 of the Immigration Act 1971 (prior to 1983) whereby CUKCs born overseas with a relevant link to the UK via a grandparent had the right of abode in the UK and may be said to belong to the UK, and given that such persons were re-classified as British citizens in 1983 on commencement of the British Nationality Act 1981; and
  • Given the reduction of the prejudicial effect of pre-1983 gender discrimination in British nationality law, effected by the introduction and modification of s 4C of the 1981 Act, provided a route to registration as a British citizen for those born to mothers who were British nationals;
  • the winners are:
  1.  persons born  prior to 1983 in a foreign country to fathers born in the UK (1st generation paternal line), such persons automatically acquired British nationality at birth and are British citizens today;
  2. persons born prior to 1983 in a foreign country, to a father born in a foreign country, where the paternal grandfather was born in the UK (2nd generation  paternal line), such persons acquired British nationality at birth (e.g. where born in a country where His Majesty exercised jurisdiction over British subjects) or could and did acquire British nationality (by registration of the birth at a British consulate); such persons are British citizen today;
  3. persons born prior to 1983 in a foreign country, to mothers born in the UK (1st generation maternal line), such persons have access today to registration as a British citizen under s 4C of the  1981 Act; and
  4. persons born prior to 1983 in a foreign country, to mothers also born in a foreign country but where the maternal grandfather was born in the UK so the mother has British nationality (2nd generation born outside the UK, via a mother – so maternal line – but with a maternal grandfather), such persons have access today to registration as a British citizen under s 4C of the 1981 Act;
  • the losers are:
  1.  persons born prior to 1983 in a foreign country, where the paternal grandmother was born in the UK  but the father was born in a foreign country and did  not acquire British nationality, (2nd generation  born outside the UK, via a father – so paternal line – but with a paternal grandmother), such persons have no access to British citizenship; and
  2. persons born prior to 1983 in a foreign country, where the maternal grandmother was  born in the UK but the mother was born in a foreign country and did  not acquire British nationality (2nd generation  born outside the UK – so maternal line – but with a maternal grandmother), such persons have no access to British citizenship.

Conclusion 

The solution is to amend s 4C of the British Nationality Act 1981 to eliminate the remaining prejudice occasioned by gender discrimination in the pre-1983 law.

1 note
#Gender #British nationality law #Gender discrimination #British Nationality Act 1981
UK Proving statelessness: evidential issues for refused asylum seekers

The introduction of a statelessness determination procedure in the UK in April 2013 was a welcome development. However, it has thrown into sharp relief a number of issues about how to establish that a person is a stateless person.

The UK statelessness determination procedure forms part of immigration rules. It is, in truth, a mechanism, for regularising the immigration status of migrants. To that extent it is a useful tool. However it is limited to that function. It has no independent existence as a statelessness determination procedure. For example, it is not apt to assist an alien with permission to remain in the UK on some other basis, who seeks recognition as a stateless person in order to secure a Stateless Person travel document. Nor does it necessarily assist persons who are stateless but who are not necessarily migrants, for example a person who was born stateless as a result of a surrogacy arrangement.

Where the UK statelessness determination procedure scores more highly is in providing a relatively simple route to securing permission to remain in the UK for migrants who lack formal status. Indeed from the perspective of the UK Border Agency, the utility of the new procedure lies in its ability to deal with a residuum of persons of have not been able to secure permission to remain on any other basis and who cannot be readily removed from the UK. In practice that cohort of persons includes persons refused asylum and other persons who are unlawfully present in the UK.

As regards refused asylum seekers, this means that such persons will have come to the UK and sought asylum as refugees under the 1951 Refugee Convention or have sought complementary protection on some other basis. Such persons will have been through an administrative determination procedure and, where refused, ordinarily will have had the opportunity to appeal to an independent tribunal competent to determine matters of fact and law. Where unsuccessful in securing a grant of asylum or a form of complementary protection, many such persons will have remained on the territory of the UK. Absent voluntary departure or forced removal, refused asylum seekers remain in the UK without status, without entitlements to social assistance and without permission to work. For a stateless person the position is especially acute as there is no country to which they can return and enter as of right as a national of that country in order to end this regime of treatment.

For a refused asylum seeker who claims to be a stateless person under the 1954 Stateless Persons Convention and who seeks permission to remain in the UK on that basis, the problem of proving his or her case raises evidential questions. First, there will already be a body of official paperwork gathered about that person in connection with their asylum claim. In respect of the initial asylum application this will usually comprise an initial statement of evidence form, a screening interview and a full asylum interview.

Where that application is refused, there will usually be a further witness statement prepared for an appeal and a copy of the judgment of the appeal tribunal. In all this material the focus will be on the issue of whether or not the person is entitled to a grant of asylum because he or she is at risk of persecution on return.
On the initial statement of evidence form, in the record of the screening interview and in the record of the full asylum interview, information will be recorded that may be relevant to establishing statelessness but if it is that will be incidental to its purpose and so a full answer relevant to statelessness may not have been given.

Further questions may be asked and answers recorded as to a person’s nationality without regard to the significance of such information. A person may be recorded as holding the nationality of his or her home country merely because he or she has come ‘from’ that country to the UK. At this stage the decision maker will not have been interested in establishing whether or not the person is a stateless person.

Thereafter, on appeal, a person’s evidence will have been tested by cross-examination as regards the asylum claim and the tribunal judge will have drawn conclusions about the person’s credibility, possibly adverse conclusions, as regards that person’s account of past experiences. The asylum appeal will have been determined by evaluating whether there is a reasonable degree of likelihood of persecution on return. If expert evidence or background reports on the country of origin have been adduced, the focus will have been on the political situation in the country of origin rather than on the operation of the nationality law and administrative procedure in that country. It is also very unlikely that anyone will have sought a birth certificate or registry entry from the country of origin or have considered whether the country of origin has a low or high incidence of birth registration.

At the end of this process, a person who has been unsuccessful in claiming refugee status but who avers that he or she is stateless has to begin the process of establishing that he or she is stateless and that he or she is non-returnable to any other country. Such a person may have had a subjective fear of persecution and have been forced to leave his or her country of origin in a hurry or covertly and so may not have able to bring documents with them to the UK that would help establish a want of nationality. In addition, as already touched on above, the process of applying for refugee status and appealing against a refusal of the same will have led to a person answering questions with a view to establishing a risk of persecution on return but where such answers may have a bearing on proving whether a person is not recognised as a national of the country of origin under the operation of its law. Further, as already noted, that person’s credibility may already have been impugned. It should also be noted that most UK immigration advisors who focus on international protection issues tend to focus on proving risk of persecution on return and not on a technical analysis of the operation of foreign nationality laws and codes.

The refused asylum seeker who seeks to establish that he or she is a stateless person will not receive any legal aid from public funds in order to do so, nor will he or she have any entitlement to social assistance or permission to work. In this setting and against the backcloth of the material of the refused asylum claim, he or she will have to secure legal assistance and begin to establish that he or she is not accepted a national of any relevant country under the operation of its law. It is only at this late stage that the value of birth registration and birth certificates as forms of evidence as regards nationality and statelessness may become apparent.

Investigating whether a birth has been registered or a certificate is obtainable may prove difficult where the person is outside the state of birth and may have been so for many years seeking refuge.
Equally, a person who has come to the UK to seek asylum but who has been unsuccessful for what ever reason may be very reluctant to approach the embassy or consulate of his or her home state to seek confirmation that he or she is not a national of that state. This is particularly so as the UK also requires that a person is non-returnable to any country in order for a person to secure permission to remain as a stateless person.

One can easily imagine a situation where an asylum claim fails for want of background evidence, the applicant is nonetheless from a minority vulnerable to persecution in the home country, and the embassy of that country when approached recognises that person as one of its own nationals but may not have done so on a consistent basis as regards other persons from the same minority who had previously approached it; thus leading to that particular person being returnable. Such a person would not be stateless person of course, although he or she may be at risk of persecution. However, in the context of a subjective fear of persecution and the knowledge that others from the same minority had been refused recognition as nationals of that country, he or she may feel obliged to approach the embassy to seek to establish statelessness but may be apprehensive as to the consequences of so doing.

As regards expert evidence as to the operation of the nationality laws in a relevant country, an applicant for recognition as a stateless person may need to secure a person expert in the law of that country and the operation of its laws. The expert who assessed risk on return for the purposes of the asylum claim may be a political scientist or international relations scholar and may not have the expertise to assist. A lawyer qualified in the law of the relevant country may be better. However it may be expensive to secure advice from such a person.

Finally, it should be borne in mind, that a refused asylum seeker will have had his or her claim to be at risk of persecution judged by the tribunal on the standard of reasonable degree of likelihood as regards past facts as well as future risk. Any helpful findings of fact in the tribunal’s judgment will only help the applicant for recognition as a stateless person so far, as the standard of proof that the UK requires to prove facts in the statelessness determination procedure is higher, proof is required on the balance of probabilities.

In conclusion, it can be seen that the UK’s statelessness determination procedure is a welcome development but raises complex and difficult evidential issues for refused asylum seekers seeking to establish status as stateless persons.

(This post first appeared on the European Network on Statelessness Blog www.statelessness.eu@ENStatelessness)

#Statelessness #Asylum #UK #Immigration
UK Detention and Expulsion of Homeless EU Citizens

In recent years the Home Office has developed a taste for seeking to detain and expel homeless EU citizens from the UK. Instead of assuming that such persons may be working, seeking work or otherwise self-sufficient and therefore leaving them alone, the Home Office has proceeded to detain and administratively remove them even though they have neither sought access to social assistance or social security, nor reached the public policy threshold for being deported (and therefore banned from re-entry). The EU citizens who have been targeted have tended to be from Poland, the Baltic states other formerly Communist states that joined the EU in 2004 and 2007.

Instead of treating homeless EU citizens as people who may require accommodation, community care and a hand up to get back on their feet, a Home Office practice of seeking to return them to their home countries has emerged. Many such EU citizens are single men who have sought work in insecure sectors such as the building trades, hospitality or catering. They are men for whom the reality of migrating to the UK has brought hardship, low levels of pay and many connected social problems.

However the Home Office practice of seeking to detain and remove EU citizens has led to it overriding rights arising under EU law in a way that treats EU citizens as if they were third-country nationals (from states outside the EU). A recent case in the High Court in London, concerning a claim for unlawful detention of a Polish citizen, R(Kondrak) v The Secretary of State for the Home Department [2015] EWHC 639 (Admin), a case in which I acted for the Claimant, illustrates well how rights arising under EU law may be overridden by the Home Office, only for those very same rights to form the foundation of a claim for unlawful detention afterwards and a substantial award of damages.

Mr Kondrak had been in and out of work while in the UK. When not working he had been seeking work. From time to time he found himself without a roof over his head. As a result of being encountered by the police when sleeping rough he found himself the target of Home Office attempts to remove him to Poland. As a result he was detained under immigration powers by the Home Office for over five months without steps being taken to remove him to Poland. When he was released he was made subject to a grant of temporary release that prohibited him from working.

The problem with his prolonged detention and then the prohibition on work when released was that thereby he was prevented from exercising EU treaty rights to seek work and to take work. The Home Office position in essence was it wished to remove him as a person who was neither working nor seeking work. However its very action in controlling him in order to expel him manufactured a situation where he was unable to do either of these things, despite having rights to do so.

The High Court held that Mr Kondrak had been unlawfully detained. The Home Office further conceded that the restriction on work was unlawful. It mattered not that he had not been wholly co-operative when first encountered nor that he had not exercised a right of appeal against the immigration decision to remove him. What was of significance was that the actions of the Home Office had frustrated the exercise of EU rights of residence. Further, under the applicable Home Office policy, EU citizens were only to be detained for removal in the ordinary run of events when that removal was immanent, that is when the person needed to be taken to the airport following the service of removal directions. The policy recognised the need to tread carefully where EU rights were in issue.

On the facts of the case there were also failures to follow other aspects of that policy, including the the provision made for regular reviews of detention. Further, while in detention Mr Kondrak had not had ready access to legal advice in order to secure his release. During much of the period of his detention he had simply been forgotten. While the Home Office disclosed the documents they held concerning the matter, it did not bother to file a witness statement and put forward one of its officials to justify its actions.

Mr Kondrak relied on Articles 20 and 21 of the Treaty on the Functioning of the European Union (‘TFEU’) providing for EU citizenship for nationals of EU member states and conferring rights of free movement around the EU, as well as Articles 45 and 49 TFEU providing respectively the right to take up employment and to be self-employed in an EU member state other than one’s own member state of nationality.

The High Court held that Mr Kondrak had been unlawfully detained from the outset. The Home Office knew he did not have an ID card or passport and, further, removal was not immanent in the sense that specific removal directions had been set and that detention was necessary to take him to the airport to remove him.

During the hearing and based on some evidence disclosed, it became clear that the Home Office did not consider it could detain Mr Kondrak for more than a week in order to effect removal. The Court found that it would only have been reasonable to detain Mr Kondrak for a maximum of a week to effect removal. That finding is very useful for further cases where the Home Office seek to remove (as opposed to deport) an EU citizen. As a result of being unlawfully detained damages were awarded.

The case highlights the point that EU citizens are better placed to resist detention for the purposes of administrative removal from the UK than third country nationals (without a connection to EU law) as they can invoke rights of free movement arising under the EU treaties. It serves as a marker that detention of EU citizens for removal must be kept to a relatively brief period of time. Finally, the award of damages serves to vindicate the Claimant’s position and to remind the Home Office that there is a cost to treating EU citizens in this way.

#Homelessness #European Union #Immigration #Detention #UK Immigration
Advertisements
This entry was posted in World by truthaholics. Bookmark the permalink.

About truthaholics

| Exposing Truth Behind Media Spin. Truth is not gossip. It's not sensational or even exciting. Truth's reality, fact. Truth's shocking, sad, horrific, frightening and deadly. Controversial issues discussed here so only for those able to digest Truth.

One thought on “#BREXIT #EU Citizens Living in the #UK: A Self-Help Guide!

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: