The Brexit rule that states that EU citizens must re-apply for settled status to stay in the UK, has been declared unlawful.

EU citizens currently living and working in the UK under the pre-settled status will have to apply for full settled status after 5 years. The pre-settled status is limited in time and failure to apply for the settled status may put millions of EU citizens, currently residing in the UK, under the pre-settled status at risk of being able to work and reside in the UK legally.

The post-Brexit watchdog for EU citizens’ rights, the Independent Monitoring Authority (IMA), challenged this rule at the High Court saying that the ministers were breaking the undertaking given to the European Union and potentially creating serious uncertainty on the status of stay of millions of EU nationals. Furthermore, this uncertainty was never intended in the Brexit Withdrawal Agreement.

The High Court Rules that the scheme did indeed create a level of uncertainty and Mr Justice Lane stated that; ‘a person who knowingly remains beyond the time limited by the leave could commit a criminal offence.’

It is in Mr Justice Lane’s judgment, a situation where the ‘consequences cannot be brushed aside as merely procedural matters.’ This may put at risks the weak, elderly ones who may become overstayers.

Following the judgement, the junior Home Office minister Lord Murray indicated that the Government planned to appeal.

The Chagos Islands… The Chagos archipelago is a place close to our heart as the founder of Bonheur Legal originates from the Islands. It is a place that has seen its’ inhabitants expelled from their own land by the UK and made homeless between 1967 and 1973 in order for the US to set-up a military base.

In 2002, the UK agreed to grant British citizenship to British Overseas Territories citizens which meant that the Chagossians and their children could gain British citizenship. This however did not extend to grandchildren and great-grand-children.

After years of campaigning, the Government has agreed to amend the Nationality and Border Act, such that the British nationality has now been extended to People of Chagossian descent. The chagossian descent have a five-year period to register as British citizens.

Applying for the British Citizenship

The application process is now opened and since the 23 November 2022, the applicants can apply for British overseas territory citizenship or British citizenship at the same time and if successful, will obtain both statuses.

Applications can be made online at https://visas-immigration.service.gov.uk/product/nationality-biot

Note that if you live overseas, you will be required to attend a biometric appointment at a visa centre as part of the application process.

Documents required

As part of the requirements, the applicants will have to provide evidence that they are a descent of a Chagossian born in the Chagos Islands. This can include marriage certificates, court records etc. It is our understanding that the Home Office will approach each case on its own merits and where evidence might be lacking, they will attempt to check their records to locate this. 

Costs 

The application is free of charge.

How can we assist

We can help you with the whole application and some of our staff can speak and write in creole.

The Home Office has recently issued a set of relevant sponsor amendments. 

What you should know:

  1. The foreign workers can now start work for their sponsor as soon as they have permission to enter or stay in the UK without having to start for the date given on their Certificate of Sponsorship.
  2. The Salary entered on a Defined CoS must genuinely reflect what the employee will be paid for the number of hours worked.
  3. A concession has been added for extended absence without pay. Note however that each case will be decided on its own merits.
  4. Only guaranteed gross pay should now be included in the salary section. Other guaranteed allowances, pay or benefits will no longer be considered as part of the pay package

Scale-up Worker visa

Since 22 August 2022, fast-growing UK businesses can attract talents under the Scale-up visa route.

Definition

A fast-growing or scale-up business is a high-growth company that has:

This definition seems in line with that of the Organisation for Economic Co-operation and Development (OECD). The OECD defines high-growth enterprises as ‘All enterprises with average annualised growth greater than 20% per annum, over a three-year period should be considered as high-growth enterprises. Growth can be measured by the number of employees or by turnover.’

A Scale-up Worker visa will allow a visa national to come and perform an eligible job for a fast-growing company.

Requirements

To qualify for a Scale-up Worker visa the applicant must:

Duration of Stay

The migrant can potentially stay for a:

  1. Sponsored stage of 2 years
  2. Unsponsored stage of 3 years

It is interesting to note that although the initial visa lasts for two years, the applicant must work for the specified sponsor for only the first six months. 

This is a welcomed option to the sponsor as after 6 months, the administrative duties imposed on the sponsor is lessened and there is no Immigration Skills Charge which represents a considerable saving to the employer.

For the employee, he or she enjoys some flexibility as to where he or she can work.

Becoming a Scale-up Sponsor

You will have to go through the normal process of applying for a Sponsorship Licence and the Sponsors who hold a general sponsor licence will need to add the scale-up option to their licence. When applying the Home Office will check the HMRC data directly and it is therefore important that the companies HMRC’s records are up to date.

Unlike the general licence, the scale-up licence cannot be renewed beyond the four years.

Indefinite Leave to Remain

After 5 years of continuous stay under the Scale-up Worker visa you may be able to apply to settle permanently in the UK and apply for the Indefinite Leave to Remain.

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