Immigration Update: British citizenship revisited

By: 
Primerose Makunzva

Primerose Makunzva

SINCE the Brexit vote, the Home Office has seen a spike in the number of applications for British Citizenship as most European Nationals resident in the UK are now trying to switch their status and become British Citizens before Britain leaves the EU. Previously most European nationals and their family members did not see the need to become British as they could live and work in the UK under EEA regulations without any restrictions.

The new Prime Minister, Theresa May has so far refused to give EEA Nationals any guarantees about their status after Britain leaves the EU. The only guarantee she has given is that she will carry out the mandate of the British people to leave the EU as she respects the will of the British people.

Because of the uncertainty surrounding their legal status in the UK after Brexit, most EEA Nationals are choosing to become British instead of waiting to see what status the British Government will bestow upon them when Britain ceases to be a member of the EU. It is important to note that there are no immediate changes as far as Brexit is concerned. Britain is still a member of the EU and will continue to be so until it has followed the formal exit procedures under the EU treaty. At this stage, the indication is that the actual exit from the EU will take place in 2019.

Official figures indicate that about 3 million EEA Nationals live in the UK. The record number of applications for British Citizenship triggered by their concerns might mean that the Home Office will take longer than the current timescale of 6 months to process applications for British Citizenship. The Home Office’s increased work load means that people applying for citizenship now can expect some delays.

Given the current rush for British Citizenship, it is perhaps an opportune time for those who are eligible to apply for it to consider joining the queue now. However, people need to be aware that applying for British citizenship nowadays has become a lot like playing the lottery, one cannot be sure if they will get it.

The government policy in this area of law has shifted significantly over the years and it certainly seems that the current policy is to limit the numbers of people being granted British Citizenship. The requirements for applying for British Citizenship have been modified with the result that a lot of applications that would have been easily granted before the revision of the requirements are now being refused.

It is the good character requirement that is proving to be a hurdle for many people as the Home office can now rely on a number of factors to conclude that a person is not of good character. Please click here for a previous article on these factors;

http://www.newzimbabwe.com/columns-23662-UK%20Citizenship%20and%20good%2...

Click on the link below for the video update on this;

https://youtu.be/QPJNV-nBBIk

From a solicitor’s perspective, the fact that a person has committed a breach under the new HO guidance on the good character requirement should not necessarily mean that their application should be refused. There are defences that a person can rely on in order for the breach to be overlooked depending on the facts of the case.

From my experience, the decision will depend on the reason for the breach and whether or not the Caseworker who decides the application will be persuaded by the explanation and arguments provided in defence of the breach. After all, the applications are decided at the discretion of the Secretary of State. I have had the privilege of seeing people with breaches being granted citizenship whilst other people with the same breaches have their applications refused; so there is some hope.

Human rights law update

Human rights law as we know it has changed significantly in the context of immigration. The manner in which human rights applications and appeals are being assessed is a lot harsher. Previously a person applying for leave to remain in the UK under Article 8 of the European Convention on Human Rights (ECHR) had to demonstrate that it was not reasonable for their family and/or private life to continue outside the UK. Applications or appeals were allowed where a person’s removal from the UK would amount to a disproportionate breach of their family and/or private life because it was not reasonable to expect them to relocate and enjoy that life outside the UK.

This position has changed. The Government introduced its own private and family life rules in an attempt to define which rights should be protected under Article 8 (ECHR). The position now is that article 8 has to be assessed within those rules. If an applicant cannot meet the requirements of the immigration rules and is seeking leave to remain on Article 8 grounds outside of those rules, the test has changed from that of ‘reasonableness’ to one of ‘exceptional or compelling or very compelling circumstances’ depending on the facts of the case.

This is a much more stringent test than the reasonableness test which means that it is now difficult to win an article 8 argument in an application to the Home Office or indeed in an appeal where an applicant or appellant does not meet the requirements of the immigration rules on family and private life.

Those making human rights applications now need to focus on establishing that they meet this test. The Supreme Court will consider whether this new test is the appropriate test in 3 leading cases that have been granted permission to appeal to this Court. However, it might be a while before the Supreme Court actually hears these cases and makes its own decision. For now, applicants and litigants have to deal with the ‘exceptional or compelling or very compelling circumstances test’ that has so far been accepted by the other courts including the Court of Appeal.

It is also important to note that there will be no in country right of appeal anyway in human rights cases submitted after May 2016 except where one can establish that there will be irreversible harm if they are not allowed to bring their appeal whilst in the UK. Most appeals will now have to be brought from outside the UK. Given this development which is courtesy of the Immigration Act 2016, it is advisable to try and get the application right at the application stage.

Please note that this article does not seek to provide direct legal advice in people’s individual cases. If you are affected by the Immigration reforms in the UK, please seek advice from a professional.

Primerose Makunzva is a Solicitor and Partner at IPS Legal Solicitors LLP in Central London. She can be contacted on 07818 066522/ 0203 1765216 or p.makunzva@ipslegal.com. Her Immigration law video updates can be viewed at www.ailtv.com or on YouTube.

Disclaimer: This article only provides general information and guidance on immigration law. The writer will not accept any liability for any claims or inconvenience as a result of this information.

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