Over the last two years, we were told a lot of various things about the new system designed to issue some sort of “settled status” to EU citizens and family members after Brexit. Government position paper in June described a brave new world of Android apps, where it wasn’t clear if anyone would ever check if anyone ever exercised Treaty Rights, and the whole thing would be online only. I finally got some time yesterday to read through the Appendix EU, introduced into the Immigration Rules to accommodate the transition.
It is supposed to take effect in March 2019 and apparently operates now in a trial mode with employees of some NHS trusts and Liverpool area universities — not entirely sure how it does that, since rumour is it the App/ online process does not exist. The geo location of the trial — around the actual existing EEA unit in Home Office’ Liverpool compound — seems to also hint that it is not as online as we thought.
I must say right away, no thank you — I have become, unwittingly, a specialist in EU free movement cases in recent years, an honor I never wanted (I hated EU law in law school so much, i had to take it twice in order to barely pass). In practice, that made me about a 50% specialist in EU law itself, and another 50% a dubious specialist in how Home Office deals with it — in other ways, the staff, the relevant teams, the process, on various stages of which the stuff can get lost and go wrong, etc. No other UKVI division has even been so screwed up, and no other area of our immigration required so much special attention.
Most of the time it was heart wrenching — there is, again, in my own practice, not so much injustice, bureaucratic incompetence, stupidity etc as there has been in this area of our immigration. Being familiar with HOW bad it is, and how to drag some cases through unscathed, gave me a lot of anxiety attacks and sleepless nights. I do not wish to gain expertise in anything even equally as chaotic and incompetent ever again — and I have a bad feeling that what’s to come will be not only a new thing, but it will be, again, failing at every step, and extremely incompetent and chaotic. It’s not about the law, it’s about learning the new process and painfully watching how it fails in the hand of extraordinarily incompetent people. I simply cannot be a part of it. There is more immigration law practice areas to go around and mentally survive. Our government can fail at this one without me. I can’t stand any more heartbreak.
So, any applications that I will be helping people file, or advise on, will be under the exiting regime/ regulations/process, so long as it works and up to March 2019; if you want my help, let’s do it no later than last days of January 2019 (so they can maybe be approved before the actual Brexit).
However, not everyone will benefit from trying to apply now. Some people haven’t got five years, some people can’t for whatever reasons apply for naturalisation afterwards so are waiting to get new documents they won;t have to exchange, and some people simply cannot meet the requirements of the current rules — which is to say, the actual requirements for continuous exercise of Treaty Rights that comes form the Free Movement directive, or for instance requirement to prove economic activity of the ex-spouse or estranged spouse. I was reading the Appendix EU today, to try and understand whether some of those people will benefit form the new transitional regime and should therefore be advised to hold off until it kicks in.
What can you surmise from the Appendix EU?
- It does not refer to anything called “settled status” or “pre-settled status”, or “unsettled status” or anything of sorts. EU citizens and their family members will be getting either limited (temporary) leave to remain or ILR — indefinite leave to remain, like everyone else. Except of course, for £65 and without the language requirement.
- The “relevant date” is 31 December 2020. All new arrivals, new marriages, or other status preservations will count as of that date.
- Children UNDER 21 will no longer have to wait their own 5 years, and will qualify for ILR so long as their parents do (or, it seems, one of them does). Children of spouse (eg stepchildren) would be eligible if the marriage in question took place before the “specified date” (31/12/2020).
- Irish citizens do not need to, and are not welcome, to apply. Family members of Irish citizens can use birth certificates to prove their sponsor’s nationality (because, I assume, Ireland has jus soli citizenship?). ILR will not be granted to the Irish. But their family members who can prove that they otherwise qualify, will get it. This includes children.
- There will be a deception clause similar to one in the Immigration Rules currently. Applications will fall for refusal on deception grounds. This sounds like it can create, I think, a lot of problems — I sort of welcome it, because I know how full of it some people’s EU claims are — but then, most of that IT related to people’s economic activity, and now they will no longer have to prove it.
- Unmarried partners, called under EU law “durable partners”, are recognised by the Appendix in line with everyone else – however, they have to be recognised as durable partners and issued with a document before the relevant date. Ironically, a term “durable partnership of convenience” is introduced — which I think is intrinsically nonsense.
- There are clumsy provisions for both Surinder Singh and Lounes cases. However it refers to the current EEA Regulations for Surinder Singh requirements as to residence in the EU, thus grandfathering all the legally problematic hoopla with center of life, “genuine residence” etc etc. It is not clear to me how this incorporation by reference will remain in the Rules once the Regulations presumably no longer apply in March. There will however be no requirement for Treaty Rights on return or health insurance. Further it provides specifically for interview invitation, in Surinder Singh cases among others, so this line of ECJ-defying nonsense will likely continue.
- There does not appear to be any provision for derivative rights cases, that I so far found.
- Exchange of existing permanent residence cards and documents will be automatic. There will be no requirement to prove anything, including, for family members, relationship with the sponsor or their identity.
- It seems principally true that they will not be asking for details of work, self-employment, self-sufficiency or studies, or medical insurance — in fact seems will be based on RESIDENCE ONLY. Reference to workers or self-employment has to do with the (relatively rare) “worker who ceased activity” claims.
- RETAINED RIGHT OF RESIDENCE seems like will be based on the EU sponsoring spouse being a RESIDENT at the time proceedings were commenced, and we will be treated as such resident for the non-EU spouse’s ROR purposes even if he or she departs the UK while divorce proceedings are underway. ****This can seriously — positively – affect many women in my practice, whose ROR claims are precluded by inability to prove continuous work, WRS status etc of the former spouse, who is often militantly refusing to provide anything. ***
- ID ISSUE. The new procedure, which is not yet established will, it seems, still require production of original ID of the sponsor and relationship docs, even when PR applied for (bye bye Barnett? I don’t even know anymore what they are thinking — oh wait, may be it is “we can do anything we want now”). They seem to focus a lot on the promise of the elusive Android app — and it sounds like the reason is that it will include some sort of capability to scan passports and IDs, or, I guess passports, and then include a digital photo — I bet they are trying to integrate technology that is used at e-passport gates (the only good guess). I will be shocked if this works in even half the cases, if so. Seems like this will not work for non-EU family members who will have to still send their passports in. It also seems like there will be centers — eg those famous library points – that will have no purpose other than to presume people are IT-illiterate and help them use the software — rather than carry out any official function (in this regard I think what was published previously was a misrepresentation). I am also confused on the fate of the former “European passport checking service”, of which the only purposes seemed to be to take business away from immigration lawyers. I humbly submit that solicitors, barristers and OISC/CILEX lawyers should be allowed to certify those passports or this will place the whole new system entirely outside of legal practitioners’ hands. the HO has been at war with legal practitioners — especially the EEA Casework has been — for some strange reason it believes that somehow lawyers stand in its way of doing things the incompetent way it wants. But It is deeply mistaken if it thinks that it will do better on its own, without legal professionals, in trying to process 3 million documents in 2.5 years. There will remain an exception where the sponsor’s document is unavailable for reasons “beyond the applicant’s control” — I am very very cautiously optimistic about this one.
- On issue of original documents, scanned documents will be sent through online app. I guess if TR do not have to be proved, then it is manageable. They reserve the right to request original documents from a very very big list, So again, it all depends on how big of jerks they decide to be, for instance they can put ppl there to just sit and request everything from the list for no reason, or generally stamp everything through.
- All of the documents referred to above will be ostensibly to prove RESIDENCE, not treaty rights. They say they will not require anything where information is available from “other government departments”. But what “other government departments” have relevant information that can be accessed semi-automatically? ONly HMRC really, so in practice only for people with more or less uninterrupted HMRC history will this work as intended, the rest will still have to send in documents to prove residence, even if nothing else. In my experience quite a lot of sort of folks who would not have bothered until now to get documentation from HO, will also be people who do not have the proof required, so I can imagine a lot of impasse scenarios over right to ILR, and all of them being given limited leave and be upset about it. As for HMRC, right now it is VERY reluctant at answering growing number of UKVI enquiries as a lot of estranged and divorced non-EEA spouses are desperately trying to resolve their claims. In London this now almost always requires FTT directions, given quite freely in Taylor House, but for instance in Birmingham I had to fight a circus from hell to get those, and then HOPO/HMRC/whatever never actually complied with those directions anyway (yet!). HMRC has long argued that its systems and overloaded and it does not have resources to provide massive amounts of info to HO. Limited number of HO employees were given real time access to PAYE systems back when it was needed to assess Tier 1 cases, not sure what happened to that but I think EEA cases was where HMRC drew the line and I know EEA Caseworkers do not have any of their own access to HMRC systems. So the clearly overbilled future ability to somehow automatically retrieve and rely on those, to me, is doubtful.
- There is a great emphasis in the Appendix on interviewing process, and, again, it is not clear how it will be used. It reserves the right to interview applicants on their Surinder Singh activities, on the veracity of their marriage or durable partnership, or on the truthfulness of their very claim to have resided in the UK. So it seems like interviewing can become a go-to solution to a lot of problems they don’t know how to solve, and those of us who are familiar with HO resources for interviewing now (mainly used in marriage interviews and to some extent Entrepreneurs, and also employed partly during the TOEIC scandal), can’t help but be skeptical. There are hostile, policy-style interviews, conducted in isolation by threatening people in uniform, employed by enforcement, not caseworking teams — and badly trained and overconfident as they are — they are a true disaster – there is also a limited number of them. Who will do the interviewing of hundreds of thousands of non-English speakers who have no documents about anything because they threw everything away, and then claim that three years ago was too long ago to remember clearly? When they assigned the only interview team in Liverpool to look through Singh cases — without even actually interviewing anyone – it caused a tremendous backlog with them. There were maybe what, a few hundred?
To make the long story short, I believe there are basically two HUGE chunks of equally good and bad news.
The GOOD news is, that I can see how some of my clients who cannot make a workable PR claim based on ROR, might be able to still make it under the new regime, if at least they are able to get exempted from the ID requirement, on which subject HO had recently taken an unreasonable position (especially as applies to cases where documentation on the basis of the same sponsor had already been issued). Similarly a number of folks out there whose PR claims previously failed, will now be able to make them.
The BAD news is that I am pretty sure UKVi is nowhere near having a workable practical IT solution to actually do those things, nor does it have employees (and I do NOT want to be around when this goes to ATOS, Capita and G4S as it WILL — mark my words) or even office space for this (there is some unused office space in Sheffield, so that one is a maybe — I personally suspect that they are biggering the relationship with Atos and going to be basing it on ATOS Durham teams). Nor does it have processing capacity for this in its contracts with ATOS charging teams, or proper capacity to catalogue, transport files, to connect paper evidence to e-applications, etc etc. The admin and supervisory teams dealing with this even now are extraordinarily incapable of management and, for a government department of a developed 1st world country, they are amazing at completely ignoring basic principles of HR and management widely applied across all for-profit industries.
To be fair, UKVI does have some experience with connecting paper evidence submitted by post with online applications. One obvious area is Tier 2, where application shad been forced online in recent times, but they are VERY few, comparatively, and paperwork on those is VERY thin. The only large-scale area is the entry clearance operations in Sheffield, which considers marriage-based “settlement” visas, where files /sup docs are sent by post to complement applications filed and paid for online. There is SOMEWHAT more of those than Tier 2 but numbers are still incomparably laughable compared to what’s coming in EEA. Yet, since most of the countries were transferred to Sheffield processing, it had been stagnated beyond belief — what used to be a 3 week wait on average turned to 13 in a matter of a couple of months and remains there — they are no longer coping with processing targets, and, the best I can tell, envelopes with evidence are not even opened until someone is ready to look at them and make a decision, they just sit there for weeks. This is the summary of their expertise in connecting postal submissions with online applications so far, again, on much lower volumes.
I can only imagine the horror that will ensue with the order of magnitude increase in EEA caseload – coupled with the fact that, unlike now, OVERWHELMING MAJORITY pf applicants will be unassisted, so applications will be from people who do not speak good English and are not experienced at dealing with the govt, or versed in admin. To date they have actually been dealing only with people who thought, or were told, that they had the documents and meet the requirements, and were the enthusiastic participants of the system. Yet, even many of those enthusiastic participants, not to offend anyone, have filed completely bizarre, un-approvable applications (which they then bring and demonstrate to me proudly when they get refused and can’t understand why). The order of magnitude was, as I understand, a couple of hundred thousand per year. How is this system going to do with 5-10 times more applications from unwilling participants who do not understand any of the system at all — and having taken all these steps to set up it all in such a way that entirely discourages legal reps from working with them? That on top of course of all the scary and funny reporting about the failure of HO previous IT projects and how this one would seem to resolve cases alphabetically (They are not alone — I recall a few years back a new “random” allocator of DV lottery winners in the US allocated all wins to applications filed during the first 3 days of a 30-day application window).
So what should you do? Boy, this is a difficult one in many “remaining” cases.
My advice right now — it is 6 October 2018 — is this. If you are the sort of person who is thinking of becoming a British citizen, and you are capable of passing the English and LIUK tests, then you have your last chance, in weeks to come, to entirely clear of the UK immigration system before Brexit hits it. If can make an approvable, competent PR application under the FULL CURRENT RULES – without significant gaps, creative legal theories, reliance on exotic case law etc etc – you file your PR application before end of December this year. Then there is a realistic chance that it will be decided and DCPR issued to you by March 2019, with current times being not too long. Then you can make your AN application for British citizenship before Brexit date, and use the same document which will, I am sure, until that date be accepted (check that you were physically in the UK in March 2014 before embarking on this strategy). .
IF YOU DO NOT PLAN TO, or cannot for a variety of reasons, make an application for British citizenship, then there is a strong argument for doing nothing at this stage. Why spend time and money if there is a new system being about to be rolled out, that promises you status without supporting documents, and then document you receive now will have to be exchanged for another anyway? If you have a simple case and 65 quid to spare you can still busy yourself with it, sure – for instance if you share my misgivings of the workability of the future system — but mind you would have to partake in it anyway, since your DCPR would be subject to exchange.
IF YOU ARE IN THE APPEALS PROCESS on an EEA application, you have to take a hard look now at costs you are spending on it, and whether you will find on 1 April 2019 that under Appendix EU you can file an application and be approved without all this hassle. This will likely be the case if your case hinges on Treaty Rights, including sickness insurance issues, or spouse status at time of divorce for ROR cllaims.
HOWEVER there are some Appellants who will not benefit from abandoning their appeals. NOTABLY these are two most prominent groups, Surinder Singh Appellants, and those accused of relationships of convenience, as well as anyone embroiled in issues regarding validity of marriage or divorce, or some Lounes issues.
What will a no-deal Brexit do to all this?
I am not sure how likely it is, but technically the govt will not have to abide by any of this — transitional period or any such thing. But I do not think it is likely there will be no deal of any kind, simply because we are not ready to deal with these 3 million people in any other way — it’s one thing to stop letting them in, that we can do — but we still have no better mechanism to deal with the ones already here, so I strongly suspect a version of this will still be rolled out.
If you are one of my EEA route clients who had been in talks with me about maybe filing something but this hadn’t progressed, PLEASE get back in touch this month, to see if we can put you onto the calendar for a December or, the latest extreme, January filing. After that, I’m out.