Judgement of Fratila v Secretary of State

The Supreme Court has allowed the Secretary of State’s appeal in R(Fratila) v Secretary of State for Department for Work and Pensions (DWP).

The background to the appeal is that, Ms Fratila and Mr Tanase (the “Respondents“) are Romanian nationals residing in the UK. They both made applications for universal credit in June 2019. At the time of their applications, the Respondents’ right to reside in the UK arose solely from their pre-settled status under the EU Settlement Scheme. The Respondents’ applications were refused because the Universal Credit Regulations 2013, as amended by the Social Security (Income Related Benefits) (Updating and Amendment) (EU exit) Regulations 2019 (the “2019 Regulations“) do not permit universal credit to be granted solely on the basis of an individual’s pre–settled status.

The Respondents challenged the refusals of their applications for universal credit by way of judicial review. They argued that the 2019 Regulations should be quashed as contrary to the prohibition on discrimination on the grounds of nationality in Article 18 of the Treaty on the Functioning of the European Union (“article 18 TFEU“). In the High Court dismissed the Respondents’ claim. However, the Court of Appeal allowed the Respondents’ appeal. The Secretary of State for Work and Pensions appealed to the Supreme Court.

On 1 December 2021, The Supreme Court unanimously allowed the appeal. The Respondents’ challenge to the 2019 Regulations therefore fails. This means that the rules for EEA Nationals with pre-settled status claiming Universal Credit are lawful. You can read the full judgement here

Part 8 – Family Migration: Adequate maintenance and accommodation

Immigration staff guidance on considering family migration applications that are not required to; or cannot meet the minimum income threshold, has been updated the “Covid-19 Concessions” section on 8 December 2021 to confirm that the financial concessions listed at page 25 of the guidance have not been extended beyond 31 October 2021. Any income loss as a result of COVID-19 after 31 October 2021 will not be taken into account under the concessions. 

However, applicants can rely on the concessions for applications submitted after 31 October 2021, if they can evidence that in the 6 month period before their application date, there is an income loss as a result of COVID-19 that falls within the period before 31 October 2021. In this situation the Home Office caseworkers must consider the 6 month period before the date of income loss and the concession can be used.

You can read the full guidance here

Appendix FM Family Members (immigration staff guidance)

Appendix FM 1.7: financial requirement and appendix FM 1.7a: maintenance guidance, has also been updated the “Covid-19 Concessions” section to confirm that the financial concessions listed at page 71 of the guidance have not been extended beyond 31 October 2021. Any income loss as a result of COVID-19 after 31 October 2021 will not be taken into account under the concessions. 

However, applicants can rely on the concessions for applications submitted after 31 October 2021, if they can evidence that in the 6 month period before their application date, there is an income loss as a result of COVID-19 that falls within the period before 31 October 2021. In this situation the decision maker must consider the 6 month period before the date of income loss and the concession can be used.

You can read the full guidance here

Statement of changes to the Immigration Rules: HC 913

Statement of changes to the Immigration Rules published on 14 December 2021. 

This instrument amends the Immigration Rules that are used to regulate people’s entry to, and stay in, the United Kingdom. These changes to the Immigration Rules are being made (i) to clarify the eligibility criteria for the Afghan Relocations and Assistance Policy (ARAP); (ii) to clarify that ARAP dependants can be refused where the main applicant is to be refused; and (iii) remove the requirement for dependants to be Afghan nationals.

You can read the full policy document here

Temporary concession: coronavirus (COVID-19) related research

Guidance on a temporary concession to the Immigration Rules that has been introduced as part of UK Research and Innovation’s (UKRI) endorsed funder route, updated on 16 December 2021 to advise that this concession would end on 31 December 2021. 

Home Office sued for breach of Withdrawal Agreement

On 14 December 2021, the Independent Monitoring Authority for the Citizens’ Rights Agreements (IMA) issued Judicial Review proceedings against the Home Office, as it considers their position that citizens who fail to apply for Settled Status before the expiry of their Pre-Settled Status automatically lose their rights, is unlawful.

Under the EU Settlement Scheme (EUSS), citizens who have lived here for less than five years and so have been granted Pre-Settled Status (PSS) must apply for Settled Status (SS) or re-apply for PSS before their current PSS expires. If they do not apply in time, they will automatically lose rights to work, access housing, education and claim benefits and could be liable to removal.

The IMA considers that the Citizens’ Rights Agreements only provide for a loss of rights in limited circumstances, and this is not one of them. The IMA considers that the Home Office’s policy is therefore in breach of the Agreements.

The Home Office does not agree with the IMA’s interpretation of the Agreements and the IMA has, therefore, begun legal action.

You can read the IMA’s Statement of Facts and Grounds here

Right to Work Checks: An Employer’s Guide

The Home Office has updated its guidance to highlight changes for EEA Citizens and non-EEA family members without lawful immigration status after 30 June 2021, and added Annex E describing changes for biometric card holders

From 6 April 2022, BRP and BRC holders (as well as those with Frontier Worker Permits) will evidence their right to work using the Home Office online service only. Employers will no longer be able to accept or check a physical Biometric Residence Permit, Biometric Residence Card or Frontier Worker Permit as valid proof of right to work, even if it shows a later expiry date.

For prospective employees with one of these documents, the check must be completed using the Home Office’s online checking system.  

Employers do not need to retrospectively check the status of BRC or BRP holders who were employed up to and including 5 April 2022. 

You can read the full guide here

Landlord’s guide to right to rent checks

The Home Office guidance has been updated to reflect the changes coming into force in April 2022, detailed in Annex E. (This guidance advises a landlord, letting agent or homeowner how to conduct a right to rent check when letting privately rented accommodation)

BRC, BRP and FWP holders can currently choose to use either the Home Office online service or their physical cards to evidence their right to rent to a landlord. Up to and including 5 April 2022, landlords can continue to conduct manual checks on physical cards for evidence of a right to rent. 

During this time, landlords cannot insist individuals use the online service, and should not discriminate against those who wish to use their physical card. Landlords can, however, ask individuals if they would like to use the online service. 

From 6 April 2022, BRC, BRP and FWP holders will evidence their right to rent using the Home Office online service only. Landlords will no longer be able to accept physical cards for the purposes of a right to rent check, even if it shows a later expiry date. BRCs, BRPs and FWPs will be removed from the lists of acceptable documents used to conduct a manual right to rent check. 

Retrospective checks will not be required on biometric card holders who, before 6 April 2022, used their physical card to demonstrate their right to rent. Landlords will maintain a statutory excuse against any civil penalty if the initial checks were undertaken in line with the guidance that applied at the time the check was made. 

You can read the full guide here

EU Settlement Scheme: EU, other EEA and Swiss citizens and their family members Version 15.0

On 17 December 2021, the Home Office have made changes in the EU Settlement Scheme (EUSS) guidance in particular to reflect changes in the approach to contacting the applicant at the validity and eligibility stages where they have submitted fraudulent evidence.

You can read the full guidance here

The Migration Advisory Committee (MAC) Annual Report:

On 15 December 2021, the Migration Advisory Committee (MAC) published its annual report this week, which focused on improved access to the labour market and increased foreign worker protections. The MAC report contain comment on, and recommendations relating to, all aspects of the immigration system.

Some of the recommendations made in the annual report include: 

• Allowing intracompany transferees access to permanent residence in the United Kingdom;
• Adding care workers to the Health and Care Visa route and the Shortage Occupation List;
• Reviewing the ban on employment for asylum seekers;
• Not allowing jobs on the Shortage Occupation List to be paid lower salaries than the market rate; 
• Designing formalised visa routes that can be temporarily accessed

You can read the full annual report here

Human Rights Act Reform: A Modern Bill Of Rights 

On 18 December, the Ministry of Justice published its full consultation to reform the Human Rights Act 1998. The Consultation criticises the current application of the Act in the UK and sets out the government’s proposals for repealing the Act and replacing it with a UK Bill of Rights.

The Consultation summarises many other prominent and less conspicuous human rights cases which it views as unsatisfactory, providing little quantitative analysis beyond its discussion of ‘foreign national offenders’, where a ‘random sample’ of 296 First Tier Tribunal cases from internal Home Office data is cited to support the point that foreign national offenders rely more on the Article 8 right to respect for private and family life than other human rights to avoid deportation.

You can read the full consultation here

Concession to the family Immigration Rules for granting longer periods of leave and early indefinite leave to remain Version 2.0

The Home Office updated this guidance on 20 December 2021 to clarify the qualification criteria for the concession. This guidance was published only a short time ago (i.e October 2021) setting out the early indefinite leave to remain (ILR) concessions made to the family Immigration Rules, in particular those relating to young adults (aged 18 or above and under 25 years, as in the Private Life rules), for applicants seeking leave based on their private life under Part 7 of the Immigration Rules. 

The concessions aim to provide a shorter route to settlement (5 years) for those who were born in the UK or may have entered as minors and where it is considered inappropriate to expect them to complete 10-years limited leave before reaching settlement either within or outside of the family and private life rules. This guidance applies to all decisions made from 20 October 2021.

You can read the full guidance here

Digital identity document validation technology (IDVT)

On 27 December, the Home Office announced that from 6 April 2022, IDVT will be introduced to support employers and landlords with right to work, right to rent and pre-employment DBS checks.

As a result, the Home Office will enable employers and landlords to use certified Identification Document Validation Technology (IDVT) service providers to carry out digital identity checks on their behalf for many who are not in scope to use the Home Office online services, including British and Irish citizens. The relevant changes to legislation will take effect from 6 April 2022.

You can read the full policy paper here

If you need any further information, please contact our immigration team or complete the enquiry form for assistance.