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Brexit – how does the UK leaving the EU affect EU / EEA nationals and family members ?

Now that the UK has voted to leave the EU this has created a great deal of uncertainty for EU / EEA nationals and their family members.

However it is important to remember that as of yet – nothing has changed. The UK remains a member of the EU and the free movement rights of EU / EEA nationals and their family members continue.

We will soon be publishing more detailed guidance on practical steps that can be taken to protect EU / EEA nationals and their family members in the UK – especially around the various types of documents that can be applied for. In the meantime, if you have any enquiries then please email us on info@commonwealthimmigration.com

Immigration Update on UK / EU proposals – February 2016‏

UK – the new immigration rules proposed after the EU Referendum

After the recent negotiations in Brussels, we now have further information on proposed changes to immigration law if the UK votes to remain in the EU following the referendum in June.

The UK government has agreed a deal to give the UK “special status” in the EU – assuming the referendum is passed and so called “Brexit” avoided.

There are 2 main areas of immigration that will be affected by new regulations after June.

These are;

1) Family Members of EU / EEA citizens.

2) British citizens using EU law for family members (the Surinder Singh route)

Let’s look at each of these areas.

Family Members of EU / EEA citizens.

For the first group (Family Members of EU / EEA citizens), the UK government is trying to take back control of the rights of those family members to live in the UK under EU law. In summary, unless those family members already have a right of residence in an EU Member State then it seems they will be subject to UK immigration law.

The document states they will exclude;

“from the scope of free movement rights, third country nationals who had no prior lawful residence in a Member State before marrying a Union citizen or who marry a Union citizen only after the Union citizen has established residence in the host Member State”

In such cases;

“the host Member State’s immigration law will apply”

Currently, such family members can use their EU free movement rights to move to the UK with their EU citizen spouse. This can be done regardless of where they live – in the EU or outside the EU. They can apply for EEA family permits from outside the UK and EEA residence cards in the UK.

In future, it seems the UK government will be allowed to insist that such applicants are treated under UK immigration law – which is much tougher. UK immigration law requires a minimum income test, proof of English language ability, greater proof of relationships, high immigration application fees and overall a much stricter regime.

In short – the applicant loses all the advantages of applying through the EEA Family Member route.

This will be a radical change and will especially affect the many EU citizens and their spouses living outside the EU.

So, for example – after June 2016, a Brazilian citizen married to a French citizen both living in Brazil, would have to apply under the UK immigration rules to move to the UK. This would mean that they would need to meet the UK immigration financial requirement. Perhaps by showing they have substantial savings or the French citizen might need to move to the UK first to work for 6 months. The Brazilian citizen would need to pass an English test and pay the high UK immigration application fees. Proof of a genuine relationship can also be required.

Currently – none of these requirements are in place when applying as an EEA family member.

The new rules might prevent applicants from moving together to the UK – requiring the EU citizen to move first and find employment paying above the minimum income level.

Obviously we are yet to see exactly what specific requirements will be introduced and a timetable for this. But the new rules will only be in place at some point after June so many applicants should consider whether they should apply now to move to the UK through the EEA route – such as applying now for EEA family permits or EEA residence cards.

Applicants who are classed as an EEA family member before June should be able to continue to stay in the UK through their EU Free Movement rights.

British citizens using EU law for family members (the Surinder Singh route)

The second group of applicants that are specifically mentioned in the UK / EU deal are those British citizens who use EU law to live in another EU member state and then return to the UK with their spouse. This is usually referred to the Surinder Singh route after the case that first established this principle of EU free movement.

The document states;

“Member States can address specific cases of abuse of free movement rights by Union citizens returning to their Member State of nationality with a non-EU family member where residence in the host Member State has not been sufficiently genuine to create or strengthen family life and had the purpose of evading the application of national immigration rules.”

So while there is nothing to suggest this route will be abolished, this seems to signal much greater scrutiny of such applications after June. The UK government already has a rigorous “centre of life test” in their EEA regulations for such applications – requiring the British citizen to show that they have moved the centre of their life to the other EU member state.

The document seems to be giving much greater powers to the UK to require longer periods of residence, more evidence of employment / self-employment and in effect trying to put the UK’s “centre of life test” beyond any legal challenge.

Summary

It is important to understand that the UK / EU deal is contingent on the result of the UK referendum on 23 June 2016 being a vote to remain in the UK.

The proposed changes above will then be implemented by the UK and the EU – with changes in the necessary Directives and Regulations as required.

The changes could take a little time to be phased in – the exact timetable and scope of the changes is still not clear.

EEA family members should seriously consider if they can move to the UK now under the current existing rules before the new rules are introduced.

If the referendum is not passed then we really are in unknown territory. This would result in the UK withdrawing from the EU (the Brexit scenario) and working out an agreement for the rights of EU citizens and their family members currently living in the UK. This would also have to include the rights of British citizens and their family members currently living in other EU member states (of which there are over 2 million according to recent estimates).

Immigration Newsletter – November 2015

UK – new rules for EU / EEA citizens looking to apply for British citizenship

An unexpected change in the UK Nationality regulations now makes the process harder for EU / EEA citizens looking to become British citizens.

Effective from November 2015, all EU citizens (and EEA citizens) in the UK must first apply for and be issued a permanent residence document before being eligible for British citizenship. This is a big change from the process up to now where EU citizens (and their family members) could apply directly for British citizenship after reaching the residential qualifying period. Now the process involves 2 steps – firstly applying for permanent residence and then secondly a separate application for citizenship.

Applying for permanent residence is not straightforward. Such applications can easily take up to 6 months to be processed and involve a comprehensive account of the applicant’s residence in the UK for 5 years under EU law. The full 5 year period needs to be accounted for with strong evidence of residence under EU law such as a worker, self-employed person, student or self-sufficient person.

If successful, the applicant is issued a permanent residence document. An applicant can then apply for citizenship after living in the UK for 1 more year. An exception is made for those already married to or in a civil partnership with a British citizen – in those cases, the applicant is not required to complete the additional 1 year after permanent residence.

All EU / EEA applicants for British citizenship need to be aware of the other main requirements for citizenship, including;
• English language ability – meeting the required evidence on this
• Passing the Life in the UK test
• Meeting the good character test
• Residence in the UK – within the guidelines on permitted days absence

UK – new Tier 2 (General) points test for Certificates of Sponsorship

Back in April 2011, an annual cap of 20,700 Tier 2 (General) visas was introduced. The cap created an annual limit on the number of workers that UK employers could sponsor to come from overseas.

The 20,700 available places are issued on a monthly allocation (issued as Certificates of Sponsorship) but it is only in the last few months that demand has exceeded the available places. This means a “cap” or numerical limit being reached each month.

Once demand exceeds supply, the available places are allocated on a points system. This works out the points score of each applicant and then ranks them accordingly.

The Home Office has now amended the points system to prioritize high earners and those on the shortage occupation list.
The points system is biased towards offered salary, meaning that in time if demand continues to exceed the monthly allocation, then those who are paid more will get priority in the allocation.

Employers need to be aware of this in their forward planning for recruiting overseas workers who will require a restricted Certificate of Sponsorship.

Australia – Cap and Cease for certain subclasses

The Australian Department of Immigration have recently taken the highly controversial step of implementing a “cap and cease” policy on certain visa subclasses.

All visa applicants who have been patiently waiting in a queue for the Skilled Independent subclass 175, Skilled Sponsored subclass 176 and Skilled Regional Sponsored subclass 475 are now subject to “cap and cease”. This caps the number of applications that can be made in a subclass in a certain year and then deems all remaining applications not to have been made. In effect – applications are discarded despite applicants applying correctly at the time and waiting for many years.
Applicants affected by this have been invited by the Department of Immigration to apply for a refund of their application fee.

This decision has left many applicants dismayed and outraged by the manner in which this has been done, after waiting patiently for many years.

We now understand that legal action against the Department of Immigration is being planned in Australia.

Australia – Engineers in Demand

Engineering professionals looking to move to Australia for work should be aware of the option to secure permanent residence and not rely on an employer sponsored visa.

In the last few years, the Australian government have reduced the numbers of occupations that are eligible for Skilled Independent migration and instead are moving to steer their migration programme towards employer sponsored visas. This allows an applicant to work for a specific employer in a specific position. But work visas do not readily allow an applicant to move from one employer to another, or indeed to switch positions with the same employer. In effect, the applicant is “tied” to the sponsoring employer and position.

Despite the reduction in the number of occupations on the Skilled Occupation List – many engineering occupations are still present on the list for Skilled Independent migration. The main entry requirement is usually a relevant degree and at least 1 years’ work experience.

This can include Professional Engineers, Engineering Technologists and Engineering Technicians across a range of disciplines.

Before one can apply for Skilled Independent migration, an applicant must have received a positive Skills Assessment and meet the basic entry requirements on age and English language. The Skills Assessment still remains a vitally important and time consuming part of the process for all applicants. This involves an assessment of the applicant’s qualifications and work experience.

Once the Skills Assessment is passed, the next stage is usually to apply for permanent residence through the Skilled Independent subclass. This is a points tested system, with the main points awarded as follows;

Educational Qualifications

Diploma / Trade Qualification
10 points

Bachelor Degree / Masters Degree
15 points

Doctorate Degree
20 points

Age

18-24 (inclusive)
25 points

25-32 (inclusive)
30 points

33-39 (inclusive)
25 points

40-44 (inclusive)
15 points

45-49 (inclusive)

0 points

English Language Ability

Proficient English

10 points

Superior English

20 points

Employment Experience

3 years
5 points

5 years
10 points

8 years
15 points

The required Pass Mark to attain for an application is 60 points.

Applicants can also be awarded extra points for; Australian qualifications, Australian employment experience, State / Territory sponsorship, Partner skills, Sponsorship by an eligible relative living in Australia.
The main advantage to Skilled Independent migration is that it allows the applicant to secure full permanent residence at the outset without needing an offer of employment.

It can be seen that many Engineers can score highly on this points test providing a pathway to permanent residence in Australia.

The overall timeframe to secure permanent residence is around 6- 9 months.

Obviously, occupations are present on the Skilled Occupation List for Australia due to a recognised demand. Therefore, Engineers can be confident that their inclusion on the list means very good employment prospects Down Under.

Please see our Free Guide on Engineering in Australia
http://www.commonwealthimmigration.com/engineers-australia.html