Switching from work permit to indefinite stay

Switching from work permit to indefinite stay

• Taffy Nyawanza: Immigration and you

• Taffy Nyawanza: Makosi and the real Big Brother

By Taffy Nyawanza

THE English, perennial second best on the sports field, have something to cheer about this summer. On Monday 12 September, they clinched the Ashes, cricket's fiercest and most celebrated rivalries, and in dramatic fashion too. On the fifth and final Test at the Oval, they managed a draw which gave England a 2-1 series win and the Ashes for the first time since 1987. All this with a little help from a Zimbabwean. Except that he is no longer a Zimbabwean. Duncan Fletcher, the man who masterminded England’s astounding win, was born a Zimbabwean. He obtained British citizenship shortly before the Ashes got under way after 15 years of trying and then only at the personal intervention of Charles Clarke, the Secretary for the Home Department. Which brings us to this week’s immigration query in which a related issue is raised:

Dear Taffy
I am a Zimbabwean teacher, currently teaching in the UK at a primary school since 2001. My current Work Permit expires in July 2007. I plan to apply for Indefinite stay in December 2005 since my Work permit was granted in 2002 and thereafter British citizenship. I live with my wife, son and my mother who is 58 years old. My mother came to the UK as a visitor. I have lodged an application for settlement so that she can be my dependant. I also have a brother in Zimbabwe whom I wish to bring to the UK as my dependant as soon as I get indefinite stay. My older brother claimed asylum and was refused. What are my options?
Regards,
Mzee

If Mzee has worked for 4 continuous years as a work permit holder, he would indeed be eligible to apply for Indefinite Leave to Remain (ILR). He would need to show, amongst other relevant criteria, that he is still required for the employment in question, as certified by his employer before ILR can be granted. If his 4 years anniversary completes in December 2005 as he says, he can apply maximum 4 weeks before that completion.

British citizenship, as Duncan Fletcher will have found out, is a bit more onerous. There are two ways in which people who are not born British can become British nationals; naturalisation or registration. Children who are not born British citizens cannot be naturalised; they can only be registered. Mzee’s son will therefore have to be registered on the basis of Mzee’s ILR. Mzee himself will need to naturalize in order to become a British national. This is done by way of application on a prescribed form and payment of set fees. There are a number of mandatory requirements for naturalisation that apply to Mzee’s situation; the most important being that;

• the applicant must be 18 or over; of sound mind and good character (A criminal check will be carried out);
• as of 1 November 2005, the applicant must show that he has sufficient knowledge of English, Welsh or Scottish Gaelic (there is now a prescribed language proficiency test; although in certain cases, for example old age, infirmity, or insanity, this may be waived);
• as of 1 November 2005, he must show that he has sufficient knowledge of UK life;
• he must fulfil the residential requirements (Duncan Fletcher fell foul of the rule which demands applicants to have lived in Britain for five years, with absences of no more than 450 days, including 90 days within the past year);
• During the last 12 months of the five-year period in the United Kingdom, the applicant must have held ILR;
• the applicant must intend to continue to live in the UK , and;
• if granted, a public ceremony with a requirement to take the Oath or Affirmation of Allegiance to the Queen and a pledge of loyalty to the UK is now mandatory.

It is crucial to bear in mind however, that naturalisation is discretionary; it is not a right. This has important implications. For one thing, if an application is refused there is no right of appeal. The only way to challenge the decision in law would be by judicial review. This has been made somewhat easier by the requirement for written reasons of refusal to be furnished by the Home Office which came about as a result of that famous case in this area of the law; that of Al Fayed, the father of Dodi, Princess Di’s paramour. In spite of long residence, massive business interests, and several attempts to obtain British citizenship, Mohammed Al Fayed has consistently been refused British citizenship by Secretary after Secretary.

As for Mzee’s mother and brother, they can apply to stay permanently with him in the UK under Rule 317 (see link here) but only after Mzee has obtained his ILR. This rule states in part that certain dependant relatives of a person present and settled in the United Kingdom may apply for settlement. A mother or grandmother who is a widow aged 65 years or over is covered. A parent or grandparent under the age of 65 if living alone outside the United Kingdom in the most exceptional compassionate circumstances and mainly dependent financially on relatives settled in the United Kingdom is also covered. Also covered is a son, daughter, sister, brother, uncle or aunt over the age of 18 if living alone outside the United Kingdom in the most exceptional compassionate circumstances and mainly dependent financially on the relative settled in the United Kingdom. Mzee’ mother and brother can therefore come under this rule.

Note however that a careful reading of the rules shows that there is need for prior entry clearance in this capacity, meaning you have to show that you came to the UK with the visa for this category. Mzee’s mother might have to travel to Zimbabwe to lodge her application at the Consulate. Mzee, the sponsor would have to show that he can accommodate his mother and brother adequately, together with his other dependants, without recourse to public funds, in accommodation which he owns or occupies exclusively. Apart from this, as Mzee’s mother is under 65 years, she would have to go further and show that she lives alone in the ‘most exceptional compassionate circumstances’. This is difficult, but not impossible, to prove.

As for Mzee’s brother who is a failed asylum seeker, assuming that he has been refused at all the stages, and has exhausted all her appeal rights, he is liable to forced removal. Removals of failed asylum seekers to Zimbabwe have however, been temporarily been halted courtesy of the ruling by Justice Collins in 3 lead Zimbabwean cases heard in the High Court on 4 August 2005. That decision was informed by a previous groundbreaking case in which it was stated to be erroneous “…as a matter of law to hold that there can never be a case in which, by the very act of claiming asylum, an applicant puts himself at risk of persecution.”. The Judge stayed judicial review proceedings pending a fresh country guidance case by the Asylum and Immigration Tribunal (AIT) which will be informed by the findings of the Home Office Fact Finding Mission (FFM) to Zimbabwe which is carrying out its investigations at this very moment. Pending its findings, the Home Office undertook not to remove failed Asylum seekers to Zimbabwe in the meantime.

Without getting into the niceties of the law, there are broadly 2 possible outcomes to Zimbabwean failed asylum seekers depending on those findings and the subsequent determination. First, if the FFM reports that a Zimbabwean failed asylum seeker will not be at risk of persecution upon return to Zimbabwe for having claimed asylum abroad, removals will most likely resume immediately thereafter. If however, the FMM reports that a Zimbabwean failed asylum seeker will be at risk of persecution upon return to Zimbabwe for having claiming asylum abroad, there might be in certain cases the necessity of a reconsideration of cases.

I need to stress however that applications for asylum are always considered on their individual merits. There will therefore be the need to establish that the risk of persecution is a real one, both generally and for the person in question. In the event, Mzee’s mother and indeed anyone in a similar position will need to approach a solicitor as a matter of urgency for advice with respect to their individual cases.

On a related note, and without making any suggestions as to the outcome of a reconsideration, the Home Office has recently announced that anyone granted asylum and recognised as a refugee in the UK (whether the grants are made at initial decision or following an allowed appeal), will no longer obtain Indefinite Leave to Remain (ILR). They now get 5 years which is reviewable at the expiry of that period.

The Home Office’s position is that this new policy will ensure that permanent settlement is granted only to those refugees who, after five years, are still eligible to remain in the UK. Their reasoning is that this is in line with the Refugee Convention which provides that the protection of the Convention will cease to apply in specified circumstances where there is no longer a need for it. Similar provisions have been put in place for all grants of Humanitarian Protection made on or after 30th August.

Apart from this, the Home Office position is that a review need not wait until the 5 years are up; a review of refugee status may be triggered in the following ways:

• On the basis of information relating to actions (or alleged actions) of an individual refugee (for example travelling back to the country the refugee fled from), or;
• Where there has been a significant and non-temporary change in the conditions in a particular country; and/or
• When a refugee applies for ILR or reaches the five year point.

If it is found following review that a refugee no longer requires, or is no longer entitled to, protection in the UK, the persons refugee status will be withdrawn and leave curtailed under the Immigration Rules, unless he qualifies for leave on another basis, in which case leave may be varied.

These changes came about as a result of the new five-year plan on asylum and immigration entitled ‘Controlling our borders: Making migration work for Britain’ which the UK government announced in February 2005. This is the UK government’s so-called ‘New Asylum Model’ (NAM) which provides that most categories of immigrants should be subject to a minimum five year residency requirement before becoming eligible for permanent settlement. This includes refugees.

These changes raise a raft of problems. Perhaps, the most critical is that someone who has been accepted as a refugee will live through five years of uncertainty until the UK Government confirms they can remain in the UK permanently.

For a lot of people, this will come as a withering blast of ill-wind. My take on the matter is that anyone granted asylum anywhere in the world needs to make hay while the sun shines. In most countries, the UK included, refugees are assessed as home students for education purposes. It is a fantastic opportunity to obtain a good education and qualifications which stand anyone in good stead anywhere in the world - if (or should I say, when) the day of reckoning comes.

Taffy Nyawanza is accredited by the OISC and writes in his personal capacity. He can be contacted at profettaffy@yahoo.co.uk

Disclaimer: This article only provides general information and guidance on immigration law. It is not intended to replace the advice or services of a solicitor. The specific facts that apply to your matter may make the outcome different than would be anticipated by you. The writer will not accept any liability for any claims or inconvenience as a result of the use of this information.
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