Hi {name}

With the heat wave finally abating for awhile at least and Brexit rumbling on, at least now the settled status registration scheme has been brought into the Immigration Rules and will be known as Appendix EU. Although it appears our politicians still cannot agree on what type of Brexit we will be facing come March 2019.
 
I personally prefer to spend my time idling on a sandy beach and not having to worry about the goings on at Westminster, at least during this Indian summer we have been experiencing. This year my husband and I are discovering the jewels Kent has to offer and we spent an afternoon at Camber Sands and enjoyed fish and chips at the well-known fish and chip restaurant, Marinos. I would recommend this to you my friends; it’s a lovely way to distress, at least for an afternoon.
 
In other news it appears that part of the British Nationality Act 1981 has been found to be incompatible with human rights law and I will go into more detail about this. Nationality Law has always been a complex area of law and I personally find it difficult to navigate.
 
Finally I covered the impact of Brexit on Irish nationals in one of my earlier newsletters. There have been further developments that I will also explore.

All the best Narinder
 
Appendix EU – Settled status registration scheme
 
Appendix EU provides a self contained set of Immigration Rules that will cover EU nationals wanting to settle in the UK post Brexit. Little is different from the draft published and detailed in my previous newsletter however there has been one significant addition to paragraph EU16 on refusals that should be noted.
 
EU16. An application made under this Appendix may be refused on grounds of suitability where, at the date of decision, the decision-maker is satisfied that:
(a) In relation to the application and whether or not to the applicant’s knowledge, false or misleading information, representations or documents have been submitted (including false or misleading information submitted to any person to obtain a document used in support of the application); and
(b) The information, representation or documentation is material to the decision whether or not to grant the applicant leave under this Appendix; and
(c) The decision to refuse the application on this basis is proportionate.
 
Appendix EU comes into force on the 28th August 2018 but will initially only apply to 15 hospitals and universities in the north west of England. The application system is being tested over the coming months and will be fully open by March 2019.
 
For me, the most telling part of the new addition to Appendix FM is EU16 (c) as including this paragraph clearly goes against what the government has been touting about settled status being an easily accessible and non contention process that will not hinder EEA nationals and their dependents from applying for settled status. EU16 indicates that applications will be assessed and the process will not merely be registering ones details and being guaranteed status in the UK.
 

How will Brexit affect Irish citizens in the UK?

 

On the 21st June 2018 the government published details of its plan to offer settled status to EU citizens who currently live in the UK. The government’s position is that Irish citizens have a general right to live in the UK separate to their rights as EU citizens. Their rights are not reliant on the UK’s membership of the EU and they do not need to apply for settled status.

 

However there is no explanation of the legal basis for this right of residence in the UK after Brexit. Although the government has made it clear that there is no intention at present to enforce immigration control against Irish citizens. Whether they have a general legal exemption from UK immigration law remains an important question. If there is no statutory exemption from immigration control at least some Irish nationals would be vulnerable to a change in government policy. Further there is no amendments to the UK Borders Act 2007 that the automatic deportation regime imposed by the act would not apply to Irish citizens.

 

The issue is the product of a fundamental change to the UK immigration law since Irish independence. Prior to the Immigration Act 1971, immigration control targeted people identified as foreign. Irish nationals were protected by the Ireland Act 1949 which offered Irish nationals protection as they were classified as non-foreign. However the Immigration Act 1971 changed this position and instead authorised immigration control against anyone without a right of abode in the UK. This switch from positively identifying foreign nationals to negatively identifying anyone who does not have a right of abode meant that the Ireland Act 1948 no longer protects Irish citizens from Immigration control. Section 1(3) of the 1971 Act protects Irish citizens if they enter the UK directly from Ireland but does not exempt them from deportation or arriving from another country.

 

Although the government at present are committed to this special relationship with Ireland, inevitably changes will need to be made to legislation to cover all Irish citizens and not just most. The 1971 Act would need to be amended to offer free movement to Irish nationals not only from Ireland but also from anywhere in the world. Similarly the UK Borders Act 2007 would need to be amended to exclude automatic deportation of Irish nationals unless on the basis of exceptional circumstances as currently operated.

 

I would imagine it would be safer for Irish nationals to apply for settled status to avoid any ambiguity in their settlement in the UK unless the UK government unequivocally recognises the close relations in law.

Part of the British Nationality Act 1981 found incompatible with Human Rights law

 

In the opening lines of K(A Child) V Secretary of the State for the Home Department(2018), it was said “ to be a wise child who knows his own father. It might be thought, having read the facts of this case, that it is an even wiser child who knows who is deemed to be her father for the purposes of the British Nationality Act 1981”.

 

The High Court in a recent judicial review decision, found that section 50(9A) of the British Nationality Act 1981 is incompatible with Article 8 of the European Convention on Human Rights. The case concerned a child who was unable to inherit British citizenship from her father because her mother was still married to another man. The child has a British father and a Pakistani’s mother.

 

Initially the child was granted a British passport in 2014 but in 2017 the passport was revoked because the mother was still married to her husband who she fled from back in Pakistan. Section 50(9A) states that the child’s father is the husband, at the time of the child’s birth of the woman who gives birth to the child. Therefore the actual father cannot pass his citizenship to the child.

 

Section 3(1) of the 1981 Act does permit the secretary of the state to exercise their discretion in allowing the child to register for British citizenship where they see it fits. The court was asked to find that section 50(9A) was discriminatory under Article 14 ECHR. In order to engage Article 14 the test was to demonstrate there was a difference in treatment.

 

Helen Mountfield QC sitting as a deputy High court judge found that the law does not secure equal treatment that would be acquired by the child’s natural father’s citizenship. There is a clear difference in children born to mothers who are unmarried and those that are married.

 

In the evolving societal norms and structures of family life, the British Nationality Act 1981 has some catching up to do and where a child is born to a mother married to someone else, the Home Office has to consider beyond section 50(9A) of who the parent of the child is. It may well be the husband of the mother of the child but where this is not the case, the Home Office will now need to consider objective evidence, probably paternity tests, to demonstrate the actual father of the child. The Home Office can no longer considers these cases totally without merit.

 

This area of law has always been a grey area and dependent on the decision maker one may or may not succeed in their case. At least now there is more structure to these types of cases and children born to fathers who are not the husbands of their mother will not be denied their right to British citizenship. My only concern would be where the natural father is no longer present in the child’s life and a paternity test cannot be secured.

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