OFW group to challenge UK immigration rules

By Jerome Aning
Philippine Daily Inquirer
First Posted 21:42:00 08/31/2009

MANILA, Philippines - An alliance of Filipino migrant groups in the United Kingdom is set to file a legal challenge before a British court to obtain a definitive ruling on the eligibility of overseas migrant workers applying for permanent settlement after five years of continuous stay in the UK.

The London-based Kanlungan said the UK Border Agency changed the rules for permanent settlement at least three times, leaving many migrant workers, including Filipino caregivers, unable to fulfill residency requirements.

Kanlungan said it was seeking a judicial review from the British High Court of Justice on behalf of thousands of overseas senior care workers who have gaps in their visas.

A judicial review is a type of court proceeding in the UK judicial system in which a judge reviews the lawfulness of a decision or action made by a public body.

“The UK Border Agency has been refusing applications for indefinite leave to remain by senior care workers on the basis that there is a gap in their employment and stay in the UK,” Kanlugan chair Benny Clutario said in a statement sent to the Inquirer.

Clutario pointed out that the agency should not be refusing such applications because the gaps were a direct result of retrospective changes in immigration rules between 2006 and 2008, and not because of any violation of immigration laws by migrant workers.

He recalled that in 2006, the UK government changed the requirement for applying for permanent settlement from four years to five years and applied this retrospectively to all migrants.

Thousands of senior care workers were caught by the change and had to re-apply for an extension of their work permit and visa for at least another year, he recounted.In 2007, the UK government imposed new requirements for renewals of work permits and visas for senior care workers, requiring them to have skills and qualifications at National Vocational Qualification (NVQ) Level 3, which is roughly equivalent to a university degree and a minimum salary of £7.02 (about P550) per hour.

As a result, over 3,500 work permits of senior care workers were not renewed, Clutario said.

The new rules were challenged by Kanlungan and other migrant organizations and trade unions in Britain.In 2008, the UK Border Agency issued transitional measures and granted several concessions.

The agency said senior care workers who had their work permits approved prior to Dec. 31, 2003, and who remained with the same employer for their existing work permit, would be granted an exceptional extension for a maximum of 12 months, provided the permit holder had not left the United Kingdom.

The skills criteria and the required salary of £7.02 would be waived.Meanwhile, those who arrived in the UK after Dec. 31, 2003 (and who had not left the UK ), would only have the skills criteria waived.

Work permit renewals with the same employer or with a new employer would still require that the employer pay them £7.02 per hour.

Clutario said in March 2006, the British government gave further concessions for those who had lost their jobs, their work permits and their leave to remain due to the rule changes.

Guidelines that were issued allowed the affected migrants to apply for a new work permit, with employers paying £7.02 per hour, as long as the application was made within six months of the date they lost their right to remain in the UK.

Clutario said many senior care workers, with gaps in their visas within their five years of stay in the UK, have tried to apply for indefinite leave to remain.

However, they were refused by the Home Office and told that they should fill the gaps in their visas and re-apply when these gaps have been completed.Some have yet to find new employers willing to pay them £7.02 an hour and who are therefore, staying in the UK as undocumented migrants, according to Clutario.

“When migrants lose their visas, this does not automatically result in all these workers leaving the country. It almost certainly translates into a significant number of workers staying in the UK as undocumented migrants. Sadly, they become undocumented not by choice but because of misguided policies and mismanaged immigration,” he said.

Kanlungan called on senior care workers who have experienced gaps in their visas due to changes in immigration rules to come forward and provide evidence.

“The more senior careers involved in this legal action, the better the chance for success," Clutario said.