UK employers may be feeling slightly beleagured. This week the UK Border and Immigration Agency in the UK Home Office has published a consultation on illegal working and the sanctions to be imposed on employers. This week the European Commission unveils proposals for minimum penalties for employers who employ people who do not have permission to work in member States.
Investor status is a special category under the UK immigration rules that is open to people who can demonstrate the ownership of a substantial amount of money and a commitment to invest this in the UK for a minimum period of time. The category is aimed at those who wish to immigrate to the UK and it is a requirement that applicants intend to make the UK their main home.
On 8 May 2006 the Uniting American Families Act was reintroduced into the United States Congress. This is a proposal for legislation, promoted by Senator Leahy and Representative Nadler, that would allow US citizens and residents to sponsor their same-sex partners to come to the United States of America for immigration purposes. At the moment, there are no such provisions in the immigration law of the United States.
In the UK the position is very different. Nearly four years ago, the UK passed the Civil Partnerships Act 2004. This came into force on 5 December 2005. It provides an opportunity for same-sex couples to enter into a legal relationship. Same-sex couples cannot marry in the UK, but the law gave civil partners very similar rights to married couples. Immigration law is no exception. The UK immigration rules for spouses (husbands and wives) and civil partners have been closely aligned. Where the UK immigration rules referred to spouses, references to civil partners were inserted.
Some people will not have entered into a civil partnership in the UK, but in another country. The UK recognises some, but not all, countries’ arrangements for unions between people of the same sex. Either the unions are listed in a list made under the Civil Partnership Act 2004 or they meet general conditions for which provision is made in that Act.
The relationships listed (as of 10 May 2007) are:
• Andorra - unio estable de parella
• Australia (Tasmania) significant relationship
• Belgium cohabitation légale, wettelijke sammenwoning, gesetzliches
zusammenwohnen and marriage
• Canada marriage
• Canada (Nova Scotia) domestic partnership
• Canada (Quebec) union civile
• Denmark registreret partnerskab
• Finland rekisteröity parisuhde , registrerad partnerskap
• France pacte civile de solidarité
• Germany Lebenspartnerschaft
• Iceland staðfesta samvist
• Luxembourg - partenariat enregistré, eingetragene partnerschaft
• Netherlands geregistreerde partnerschap and marriage
• New Zealand - civil union
• Norway registrert partnerskap
• Sweden registrerat partnerskap
• United States of America (California) domestic partnership
• United States of America (Connecticut) civil union
• United States of America (Maine) domestic partnership
• United States of America (Massachusetts) marriage
• United States of America (New Jersey) domestic partnership
• United States of America (Vermont) civil union
It is important not to assume that this list is reciprocal – just because the UK recognises civil partnerships from a particular country does not mean that that country will recognize UK civil partnerships for the purposes of its immigration laws.
UK immigration law also makes provision for couples, including same sex couples, who have not married or entered into a civil partnership. UK immigration law calls these people ‘unmarried partners’. Such couples must have a relationship that is considered by the UK immigration authorities to be akin to marriage or a civil partnership and this normally requires the couple to have lived together for two years.
On 9 May 2007, the House of Commons debated the new proposal for immigration legislation in the UK, the UK Borders Bill. The Bill will now go to the House of Lords.
Changes were made to the Bill on 9 May. Powers to deport from the UK people who have committed a criminal offence were strengthened, with increased powers to remove a person who has been given a suspended sentence following conviction for a criminal offence. There are new powers to make searches for evidence of a person’s nationality where a person has been arrested for a criminal offence and it is suspected that the person is not British. So far there has been little discussion of what might give rise to such a suspicion.
The European Court of Justice (ECJ) judgment in the case of Tum and Dari is still awaited one year after a hearing in the case on 18 May 2006. The case raises significant questions concerning Turkish nationals’ rights under the Association Agreement between the European Union and Turkey (the ‘Ankara Agreement’). When judgment is given, it will have a wide-ranging impact on Turkish men and women who want to run businesses in the UK.
On 1 May 2007 the International Graduate Scheme (IGS) replaced the Science and Engineering Graduates Scheme (SEGS).
The UK Court of Appeal has considered the evidence to be provided by people under immigration control when a marriage or civil partnership breaks down because of domestic violence.
The new proposal for immigration legislation in the UK, the UK Borders Bill, has been considered by a Committee in the UK parliament’s House of Commons. The UK Borders Bill will soon be considered by the whole House of Commons. Members of the UK parliament are proposing changes to the Bill (amendments) for the whole House of Commons to consider.
The Asylum and Immigration Tribunal has allowed an appeal by a person who entered under the Highly Skilled Migrants Programme (HSMP) scheme and was then asked to leave the UK when the criteria for the programme were changed and he no longer qualified.
The appellant in GJ and others v SSHD [IA 03838/07] was an Indian national with an international career. When the UK government changed the rules for qualifying under the HSMP, GJ could no longer qualify. The UK government had said that people in this position could apply for leave to remain as a work permit holder, and this he did although he held no work permit. He was refused because he held no work permit. He had a right of appeal on the grounds that the decision breached his human rights under Article 8 of the European Convention on Human Rights, which protects rights to private and family life. This appeal succeeded.
GJ argued that he had a legitimate expectation that his leave would be extended, and that the interference with his right to private and family life when his application wa refused was disproportionate and therefore breached his human rights. He had sold his house and given up the job he had held for 13 years in a third country to come to the UK.
The immigration judge considered the HSMP application made by GJ, which required him to state that he intended to make the UK his main home and his country of habitual residence. The documentation given to applicants at the time of GJ’s application in summer 2005, when GJ applied, stated:
How will the revised HSMP affect me?
Not at all. It is important to note that once you have entered the programme you are in a category that has an avenue to settlement. Those who have already entered under HSMP will be allowed to stay and apply for settlement after four years qualifying residence regardless of these revisions to HSMP .
This guidance has since been changed. While the immigration judge considered the argument that the guidance in force when GJ applied stated only that the person would be ‘allowed to apply’ for settlement (Indefinite Leave to Remain, ILR), not that she or he would be granted settlement (indefinite leave to remain in the UK), he considered that this argument was ‘jesuitical in the extreme’. A person would have understood the paragraph to mean that the changes would not affect them. The immigration judge took into account that GJ had relied on the statement, giving up his job and selling his house.
The immigration judge made clear that he was not saying that changes to the HSMP were unlawful per se but that the changes were unlawful as they were applied to GJ because GJ was right to say that he had a legitimate expectation to remain. He considered that in GJ’s case the decision was not in accordance with the law, as is required by Article 8 ECHR.
The immigration judge acknowledged that the UK laws on legitimate expectation are complex. He therefore also considered the requirement under Article 8 ECHR that any interference with a person’s rights to family and private life must be proportionate to the reason for this interference, in this case maintaining UK immigration control. He found that it was not proportionate. The interests of GJ outweighed those of the government in maintaining immigration control. His appeal, and those of his wife and children, were allowed.
It is not yet known whether the Home Office will appeal the decision. They may be encouraged to do so because of the failure of another challenge based on legitimate expectation in the case of immigration rule found that postgraduate doctors and dentists and the organisations representing them. The High Court, a superior court to the Asylum and Immigration Tribunal held that the postgraduate doctors and dentists could not claim to have a legitimate expectation that they would be consulted on any rule changes in R (BAIPO Action Limited & Dr Imran Yousaf) v Secretary of State for the Home Department and Secretary of State for Health [2007] EWHC 199 (Admin).
GJ's case will be of interest to all those applying or thinking of applying, under the HSMP. Many potential applicants will be alarmed at the way GJ was treated: he gave up his house and his job and found himself expected to leave the UK after only a year. They will also be encouraged by his success on appeal.
The HSMP remains a very attractive scheme for highly-skilled individuals wishing to come to the UK. It allows them to come before they have a job offer, and to change employers, or work for more than one employer. It allows them to take up self-employment. These are very special advantages, and individuals will continue to want to take account of them. Perhaps the main lesson to be drawn from the case for those individuals, is that the Highly Skilled Migrants Programme is not as straightforward as it looks. It is not simply about adding up your points for salary, age and earnings and obtaining your visa; you need to consider what will happen in the future.
If you are in the UK as a highly skilled migrant and, like GJ, are adversely affected by the changes to the scheme, then it is strongly suggested that you take legal advice in the light of the decision in his case to examine the options open to you. If you are considering coming to the UK as a Highly-Skilled Migrant, then you should also take advice so that you understand your position fully, and can examine the risks as well as the advantages of the scheme in the light of your individual circumstances, and based on information about the system from people who are familiar with the way in which it is working.
The Financial Times newspaper reported criticisms of changes to the Highly Skilled Migrants Programme (HSMP) on 18 December 2006 in an article entitled ‘Lawyers attack ‘unfair’ points system’, the newspaper quoted Roger Gherson, the principal of Gherson and Co. and his criticisms of the changes.
The Home Office has recently announced that it aims to bring in Tier 1 of its new points-based system, dealing with Highly Skilled Migrants, at the beginning of 2008. In an article on this website on 7 November 2006 entitled ‘The Highly Skilled Migrants Programme: The longer term view for employers and highly skilled migrants’ we wrote:
'The Home Office stated in their announcement: 'these changes will inform the decisions the Government will take towards establishing the new five-tiered Points Based System for all migration routes to the UK to work or study by April 2009', thus sounding a warning that the scheme may change again, perhaps many times, until the government are satisfied that they have got it right. What are the implications of this uncertainty for would-be highly-skilled migrants and those who wish to employ them?
The HSMP is the only 'points-based part' of the current system. The changes to the scheme a
The part of the Border and Immigration Agency (BIA) that deals with permission to work (previously called Work Permits UK) has announced changes to the Sector-Based Scheme (SBS) for Bulgarian and Romanian nationals.