EC Rights & Immigration Law: confusing policies affect thousands of families

For a long time now, the UK has been particularly cagey on matters related to marriage and divorce between British nationals and foreign spouses. Their concern is that a sizeable number of these marriages turn out to be bogus, entered into only for the purpose of allowing somebody to enter and work in the UK and obtain privileges that would otherwise be difficult to obtain.

Entry into the EEA and EU compounded these concerns greatly because of the tremendous freedoms that are supposed to be granted by mandate. Like many other areas of law at the moment, there is a drastic need for repairs and revisions. Currently the law actually discriminates more severely against British citizens who have family members from outside the EEA than it does against EEA citizens with family members who are not EEA nationals.

For example, if a Polish professional (Doctor, Dentist or Architect for example) has successfully migrated to the UK from Poland, he would have little difficulty to bring in his Zambian bride and 3 children, because the UK immigration policy declares that he has “a right to a family life”.

On the other hand, a British-born citizen who has lived in the UK all of his life would potentially face challenges to bring in a spouse from Canada, New Zealand, or Fiji, even if they were going to contribute to and be an earner and a tax payer, not a benefits claimant. The immigration law as it stands makes it difficult for anyone outside of the EU and EEA to come to the UK to work. This is potentially stopping a lot of professional workers from joining a new British husband or wife, because the system cannot be sure if this is a marriage of ‘convenience’ or one of love. For some reason, immigration policy has decided that everyone except the British-born have a right to a family life.

Even for those who have managed to circumnavigate the immigration system and join a husband or wife in the UK. Their qualifications are often thrown in to doubt leaving them unable to get the vital registration they require in order to be able to work in the same professions they left to come to the UK.

The shocking results of this policy have been very well documented in numerous media reports, including this article from the Guardian. Note especially what it says about the fact that up to 17,800 families per year are being forcibly separated by the policy. The reporter said that the people being excluded were not benefits claimants, but people who would be able to make a contribution to society.

High expected earnings of over £35’000 could see the NHS lose valuable staff

This also extends to other medical professionals such as nurses where the new rules stipulate that they must be earning at least £35’000 within 6 years of coming to the UK as reported in this article. So even those who have managed to enter the UK are not guaranteed to be able to stay, in effect breaking up many families and potentially meaning families who have raised young children in the UK will now be forced to take British born children back to their original country of residence.

The favouritism being bestowed upon EEA nationals from outside the UK does not make much sense. It almost seems like some kind of desperate measure intended to reassure the EEA and EU that the UK is doing its part, and behaving like a responsible member.

This is not to say that it is wrong for the UK to honour its EEA and EU obligations. In fact, it is definitely the right thing to do but there should be no disadvantage to our own citizens.

One of the clear disadvantages for British citizens is that they must meet a personal income test in order to qualify to bring a spouse or other family member to the UK, and the limit is set at a level that would potentially exclude up to 47% of the workforce.

As for pensioners – by far the group most likely to travel and marry a foreign partner – they really have little hope of success. For them, the only hope of maintaining an intact family unit is to move to their spouse’s country. The result of this is that their UK pension moves offshore with them, and instead of helping to drive our economy, it is aiding the economy of another country.

As one protest sign so eloquently put it: “All you need is love…. and £18,600!”

We need to also think about what happens when somebody has been living and working in the UK on the basis of marriage and then subsequently the marriage breaks down or their spouse dies. Some would suggest this is just a case of tough luck, and the person in that situation should have to return to their native country. This view does not consider that it may not always be simple to do so.

Having invested substantial time and perhaps money into establishing a life in the UK, the individual could be faced with the prospect of financial ruin if they returned to their native country, and in some cases there are potentially even worse fates waiting.

Indeed it is not hard to imagine some unscrupulous individuals abusing this situation in order to control another person. To be able to threaten a person with banishment is a great power, even if those who wield it don’t possess the authority they may imagine. The fear of being deported could cause some people to accept very detrimental and perhaps abusive conditions.

The NHS requires more Doctors and Nurses. Not red tape!

Here at Hylton-Potts, we have heard the stories of so many people who have either come to the UK to work in medical professions such as Doctors, Dentists and Nurses or planned to come to the UK, but found the rules too complicated and unforgiving. We understand that the Government and indeed the Nation do not want to be seen as a soft touch, allowing in people who intend to live off of the state.

But when we speak to people with professional qualifications in their home countries who intend to come to the UK to contribute to society and fill many jobs where there is an obvious skills shortage. We do feel for these people, as the system does feel very much like it is working against them.

However, over the years, we have been able to provide advice to working professionals who come to the UK and seek help with obtaining EC Rights and registrations with the various professional entities responsible for controlling licensing and other issues of that nature. Unfortunately for people in this situation, there is very little written about how professional workers can gain access to live and work in the UK via EC Rights and as a result, we do find that the majority of people coming to us for this service have been referred to us, for our good work and assistance.

Ideally, we would like things to be much clearer and helpful, but the system is very much designed to be obstructive, to prevent people from considering this route into the UK meaning that for many, they are often stopped at the first hurdle before ever contacting us to see how we could have potentially helped them fulfil their dream of living and working in the UK. We read almost daily how the NHS is struggling to recruit medical professionals, whilst the Government and Immigration authorities appear to be ever more inching the doors closed in a ‘stop one, stop all’ mentality.

We are happy to have helped and assisted a whole range of professional workers from; doctors, dentists, midwives, nurses, pharmacists, veterinary surgeons, social workers, architects, and more, who otherwise would never have been able to work in the UK.

Issues related to Qualifications not being recognised by the UK professions

We have also assisted a small number of people who have been living in the UK, married to their partner, but due to their qualifications coming from outside of the EEA. They never took up the option to work in their profession in the UK for various reasons including choosing to raise their children. As a consequence, this did cause many more difficulties as they did not proceed with the required registration and formalities in order to be able to work and practice in their medical field, even though this was not planned when they first came to the UK.

The rules are, as always, complicated. What you can do in this situation depends on a number of factors. One of the really important criteria is nationality. If you are from the EEA, you won’t meet many challenges in securing permission to stay, since you’ll qualify under other conditions than marriage alone.

For those from outside the EEA, however, it is a really big deal if your marriage ends. The first condition required in this case, in order to avoid deportation, is that you must have been married or living together in a registered civil partnership for a minimum of three years.

In addition to that, you personally must have been living in the UK for at least 12 consecutive months out of those three years. You then have a chance to apply for Retained Right of Residence. This is not something you can assume will be granted, but you have a chance.

Assuming that the application is successful, you would be granted a five year Residency Permit, which would give you certain rights of residence, including the ability to legally work or run a business in the UK. After accumulating a total of 1826 days of residency in the UK, you can apply for Permanent Residency.

The tricky part in all this is that you actually need to prove you can support yourself. So, if during the time that you were in the UK prior to the end of the marriage you did not have a job, you will need to ensure that you do have one before applying for Retained Residency or Permanent Residency.

If you have children who are nationals of the UK or the EEA and you have custody rights, then this also can make you eligible for Retained Residency if you can’t qualify on other grounds, however this again does not automatically qualify you to be granted residency.

Getting through all this will be a daunting task, especially in such a situation where the marriage has ended badly and a former spouse is uncooperative in assisting you with your immigration process.

Due to the seriousness of the consequences of not completing the process correctly, and the ease with which it can all go wrong, it is sensible to avail yourself of our consultancy services to assist you.

We are here to help with all EC Rights issues

Hylton-Potts has extensive experience in dealing with these legal complexities, and we can help to make the process much simpler and less stressful. Call 020 7381 8111 or send an email to [email protected] for more information about how we can help with this.

If you have been affected anything we have spoken about or are currently considering your options when it comes to working in the UK. We would like to hear about your own experiences and difficulties; you can do so by filling in your details below.