Immigration and Immigration and Housing Rights Housing Rights

Nationality LawNationality Law

►This defines the country of which This defines the country of which people are citizenspeople are citizens

►Sets out the ways in which people can Sets out the ways in which people can become citizensbecome citizens

►People generally hold passports issued People generally hold passports issued by the country of which they are by the country of which they are citizenscitizens

Immigration ControlImmigration Control

►Before ArrivalBefore Arrival

►On ArrivalOn Arrival

►After an application within the UKAfter an application within the UK

Definition of Immigration Control Definition of Immigration Control and public fundsand public funds

►Requires leave but does not have itRequires leave but does not have it

►Has leave subject to a condition that Has leave subject to a condition that they do not have recourse to public they do not have recourse to public fundsfunds

►Has been granted leave subject to Has been granted leave subject to maintenance undertakingmaintenance undertaking

Systems for managing Systems for managing immigrationimmigration

► Managed migration (work, study, visiting)Managed migration (work, study, visiting)

► Family migrationFamily migration

► The asylum systemThe asylum system

► Freedom of movement (EEA nationals)Freedom of movement (EEA nationals)

►What are the evidence implications of What are the evidence implications of each route?each route?

UK NationalUK National

Includes:Includes:

► Anyone born in the UK before 1Anyone born in the UK before 1stst January January 19831983

► Most people with a British mother or Anyone Most people with a British mother or Anyone with a British father married to their mother with a British father married to their mother (Since 1(Since 1stst July 2006 their parents don’t need July 2006 their parents don’t need to be married)to be married)

► Anyone naturalised or registered as BritishAnyone naturalised or registered as British► Anyone born in the UK after 1st January Anyone born in the UK after 1st January

1983 born to a British or settled mother (or 1983 born to a British or settled mother (or father married to their mother)father married to their mother)

Immigration statusImmigration status

NOT SUBJECT TO IMMIGRATION NOT SUBJECT TO IMMIGRATION CONTROLCONTROL

► UK nationalsUK nationals► People with right of abodePeople with right of abode► EEA nationals (enforceable treaty right)EEA nationals (enforceable treaty right)

Immigration statusImmigration status

SUBJECT TO IMMIGRATION CONTROLSUBJECT TO IMMIGRATION CONTROL► EEA national (freedom of movement only)EEA national (freedom of movement only)► Indefinite leave to Remain (settled)Indefinite leave to Remain (settled)

Refugee statusRefugee status► Exceptional forms of Leave to Remain (HP/DL)Exceptional forms of Leave to Remain (HP/DL)► Limited leave with eventual settlementLimited leave with eventual settlement

Some workers, family membersSome workers, family members► Limited leave with no eventual settlementLimited leave with no eventual settlement

Visitors, students, some workersVisitors, students, some workers

Workers Workers

►With settlementWith settlement Highly skilled migrants Highly skilled migrants Work permit holdersWork permit holders Permit free employmentPermit free employment

►Without settlementWithout settlement Sector based schemes Sector based schemes Au pairsAu pairs Working holidaymakersWorking holidaymakers

►Replaced with tier based schemeReplaced with tier based scheme

Regulation 5Regulation 5

Refugees class ARefugees class A ELR class BELR class B ILR class C (except not HR and ILR class C (except not HR and

undertakings)undertakings) Humanitarian protection class DHumanitarian protection class D Asylum seekers classes EAsylum seekers classes E

Regulation 6Regulation 6

► IneligibleIneligible

Not HR Not HR Jobseekers Jobseekers 3 months right to reside3 months right to reside Only right to reside derives from the TreatyOnly right to reside derives from the Treaty

► EligibleEligible

► WorkersWorkers► Self employedSelf employed► A8 workersA8 workers► Other EEAOther EEA► MontserratMontserrat► DeporteesDeportees► Resettling British from Zimbabwe Resettling British from Zimbabwe

EuropeEurope

►25 EU countries25 EU countries►Of which 8 “A8” joined 1/5/04 (specific Of which 8 “A8” joined 1/5/04 (specific

rules about labour market)rules about labour market)►3 more in EEA3 more in EEA►Plus SwitzerlandPlus Switzerland►A2: Bulgaria and Romania joined A2: Bulgaria and Romania joined

1/1/07, rules on accession and labour 1/1/07, rules on accession and labour marketmarket

EEA Nationals’ Right to ResideEEA Nationals’ Right to Reside

►EU Residence Directive 2004/38/ECEU Residence Directive 2004/38/EC►Reg. 1612/68Reg. 1612/68►Reg. 1251/70Reg. 1251/70►Treaty of Rome Art 39Treaty of Rome Art 39►Treaty of Rome Art 18Treaty of Rome Art 18►Article 12 to the EC TreatyArticle 12 to the EC Treaty

Initial Right to ResideInitial Right to Reside

►EEA nationals have a right to reside in EEA nationals have a right to reside in another member state for up to 3 another member state for up to 3 monthsmonths

►Public good test (policy, security or Public good test (policy, security or health)health)

►Unreasonable burden testUnreasonable burden test

Qualified right to resideQualified right to reside

►A jobseekerA jobseeker►A workerA worker►A self-employed personA self-employed person►A self sufficient personA self sufficient person►A studentA student

Workers and the EEAWorkers and the EEA

►Effective and genuine, not marginal or Effective and genuine, not marginal or ancillaryancillary

►Can be a worker if low paidCan be a worker if low paid►Work seekers are not workersWork seekers are not workers►Work in another state does not count Work in another state does not count ►Motives in getting work and length of Motives in getting work and length of

time as unemployed before getting time as unemployed before getting work are irrelevantwork are irrelevant

Former Workers Former Workers

► Is temporary unable to work as a Is temporary unable to work as a result of illness or accidentresult of illness or accident

►Recorded as involuntarily unemployed Recorded as involuntarily unemployed after having been employedafter having been employed

► Involuntarily unemployed and Involuntarily unemployed and embarked on vocational trainingembarked on vocational training

►Voluntary ceased working and Voluntary ceased working and embarked on vocational training embarked on vocational training related to previous employmentrelated to previous employment

Permanent right to residePermanent right to reside

►5 years5 years

►RetirementRetirement

►Permanent incapacityPermanent incapacity

►Work related accident or occupational Work related accident or occupational diseasedisease

Family membersFamily members

►Spouse/civil partner/dependantsSpouse/civil partner/dependants►Divorce/separationDivorce/separation

CustodyCustody AccessAccess Other circs e.g. domestic violenceOther circs e.g. domestic violence

►Children’s right to complete educationChildren’s right to complete education►Rights on death of principalRights on death of principal

A8 nationalsA8 nationals

► Transitional scheme to April 30th 2011Transitional scheme to April 30th 2011► A8 nationals have freedom of movementA8 nationals have freedom of movement► Self-employed do not have to registerSelf-employed do not have to register► Existing workers in 2004 did not have to Existing workers in 2004 did not have to

register unless they changed jobsregister unless they changed jobs► Anyone who has worked legally 12 ms+ Anyone who has worked legally 12 ms+

“becomes” EEA worker“becomes” EEA worker► Must register within 30 days of starting workMust register within 30 days of starting work► Costs £70 for card (only once)Costs £70 for card (only once)► Must get certificate for each jobMust get certificate for each job

A2 eligibilityA2 eligibility

►Bulgarian and Romanian nationals now Bulgarian and Romanian nationals now EU nationals with same rights EXCEPT EU nationals with same rights EXCEPT workersworkers

►Self employed have EEA rightsSelf employed have EEA rights►Economically inactive and students Economically inactive and students

have EEA rightshave EEA rights Students can work up to 20 hours but Students can work up to 20 hours but

need registration certificates to do soneed registration certificates to do so►Workers who have worked 12 months Workers who have worked 12 months

uninterrupted legally are EEA workers uninterrupted legally are EEA workers

A2 workers with no A2 workers with no restrictionsrestrictions

►Had leave to remain allowing them to Had leave to remain allowing them to work freely on 31/12/06work freely on 31/12/06

►Working legally on 31/12/06 and had Working legally on 31/12/06 and had worked for 12 months on that dateworked for 12 months on that date

►Spouse/civil partner of UK national or Spouse/civil partner of UK national or settled personsettled person

►Student with registration ceritificate Student with registration ceritificate not working more than 20 hoursnot working more than 20 hours

►Posted to UKPosted to UK

A2 workersA2 workers

► Work authorisation or exemption neededWork authorisation or exemption needed► Need Accession Work Cards or registration Need Accession Work Cards or registration

certificatescertificates► Highly skilled migrants get blue registration Highly skilled migrants get blue registration

certificate and no restrictions on work: certificate and no restrictions on work: eligible if workingeligible if working

► Skilled workers get prior authorisation for Skilled workers get prior authorisation for specific job and purple AWCspecific job and purple AWC Become EEA workers after 12 months workBecome EEA workers after 12 months work Eligible while employed Eligible while employed

A2 workers: low skilledA2 workers: low skilled

► Food processing or Seasonal Agricultural Food processing or Seasonal Agricultural Work Scheme (SAWS)Work Scheme (SAWS)

► Eligible while working and become EEA Eligible while working and become EEA workers after 12 months uninterrupted work workers after 12 months uninterrupted work (get blue registration card then)(get blue registration card then)

► Food processing: purple AWC, allowed to work Food processing: purple AWC, allowed to work for up to 12 monthsfor up to 12 months

► SAWS: arranged through 9 SAWS operators, SAWS: arranged through 9 SAWS operators, SAWS card, up to 6 months work, minimum 3 SAWS card, up to 6 months work, minimum 3 months break, can stay in UK if self sufficient,months break, can stay in UK if self sufficient, cannot do 12 months uninterrupted and become cannot do 12 months uninterrupted and become

EEA workerEEA worker

Habitual residenceHabitual residence

►Appreciable period of timeAppreciable period of time

►Settled intention Settled intention

►Right to reside Right to reside

Habitual Residence TestHabitual Residence Test

► Test:Test: ILR (‘settled status’)ILR (‘settled status’) Some EEASome EEA UK nationalsUK nationals Right of abodeRight of abode

► Don’t test:Don’t test: RefugeesRefugees ELR/DL/HPELR/DL/HP Asylum seekersAsylum seekers EEA economically EEA economically

activeactive Deported or Deported or

removed to UKremoved to UK Subject to Subject to

immigration controlimmigration control Resettling British Resettling British

from Zimbabwe from Zimbabwe

National Assistance Act 1948National Assistance Act 1948

►18+ “age, illness, disability or other 18+ “age, illness, disability or other circumstances are in need of care and circumstances are in need of care and attention which is not otherwise attention which is not otherwise available to them” S. 21available to them” S. 21 Right to residential accommodation under Right to residential accommodation under

part III of NA Actpart III of NA Act S 29 mental and physical handicap and S 29 mental and physical handicap and

illness: entitlement to assistance including illness: entitlement to assistance including meals, telephone, travelmeals, telephone, travel

Children Act 1989Children Act 1989

► S 17 for familiesS 17 for families

► S 20 duty to accommodate child in needS 20 duty to accommodate child in need

All children in needAll children in need Take in conjunction with S. 17Take in conjunction with S. 17 Includes over 16s with or without familiesIncludes over 16s with or without families

S54 Schedule 3 NIA Act 2002S54 Schedule 3 NIA Act 2002► People with refugee status elsewhere in EEA (para 4)People with refugee status elsewhere in EEA (para 4)► Nationals of other EEA states (para 5)Nationals of other EEA states (para 5)► Failed asylum seekers who do not co-operate with removal directions Failed asylum seekers who do not co-operate with removal directions

(para 6)(para 6)► People in the UK in breach of the immigration laws who are not asylum People in the UK in breach of the immigration laws who are not asylum

seekers (para 7)seekers (para 7)► Failed asylum seekers with children who have been notified they are Failed asylum seekers with children who have been notified they are

not taking reasonable steps to return (para 7A)not taking reasonable steps to return (para 7A)

Exceptions: Exceptions: ► People exercising treaty rights (EEA)People exercising treaty rights (EEA)► Breach of human rightsBreach of human rights► Accommodation and support for people with children after removal Accommodation and support for people with children after removal

directionsdirections► Local authorities to send people with children back to EEALocal authorities to send people with children back to EEA