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Changes To Ukraine Visa Schemes Could Spark Legal Challenges

The UK announced changes to the visa schemes ahead of the two-year anniversary of the full-scale invasion of Ukraine (Alamy)

5 min read

Lawyers have warned that the government’s changes to the Ukraine visa schemes could be unlawful, with concerns set to be raised with a parliamentary committee.

Some lawyers have argued that Ukrainians in the UK will be left with “no choice but to litigate” after the government made the surprise announcement on Monday that the Ukraine family scheme, one of the three routes for Ukrainians to obtain visas, would be shut down.

While the government said that the Homes for Ukraine scheme would still allow people to obtain visas via a “simplified” process, the closure of the families scheme will have a marked impact on the ability of refugees themselves to sponsor Ukrainians coming to the UK. 

The rules have changed so that sponsors for new visas will now need to be British or Irish citizens, or have the right to live permanently in the UK, when previously a family member in the UK with refugee status could be a sponsor.

A number of lawyers have told PoliticsHome that the way the government has implemented these changes, however, could be unlawful, as the changes to sponsorship eligibility have been put in place immediately without any changes to the Immigration Rules.

Luke Piper, Solicitor and Head of Immigration at the Work Rights Centre charity said this needed to be looked at, as it had passed without scrutiny and without the usual 21-day period for changes to the Immigration Rules to be considered.

"The government's last-minute decision to change their policy and limit who Ukrainians can join in the UK highlights an important legal question: can the Home Office change its rules in the way they have without notice and scrutiny?” Piper said.

“Given the recent changes will separate families and keep people at risk of conflict, there is a chance this point will be litigated. Faced with this sudden change in the rules, [Ukrainians] will be at a loss for how to reunite with their loved ones in safety."

The government justified going ahead with the changes immediately without consultation as it wanted to “prevent a rush of applications to pre-empt the changes to the rules which have, in part, been made to mitigate risks of misuse of the generosity of the schemes”. Piper pointed out that this suggested that many people who still intended to bring loved ones to the UK will no longer be able to as a result of these changes.

PoliticsHome understands that some laywers will therefore make a representation to the Secondary Legislation Scrutiny Committee, which makes recommendations on whether legislation needs to be brought to the attention of the House. The Home Affairs Select Committee in the Commons is also concerned about the legality of the changes. 

Jennifer Blair, a barrister at No5 Chambers, agreed with Piper that some Ukrainians might now be left with “no choice but to litigate”, citing examples of families she has spoken to who are unable to now sponsor newborn babies to join them in the UK, or unable to bring vulnerable family members to live with them despite having suitable accommodation.

“It is probably not lawful for the Home Office to impose a nationality requirement on sponsors without putting this in the Immigration Rules,” she said.

“It may also be unlawful and irrational for the government to discriminate against non-British sponsors who can offer suitable accommodation.

“There was already a real shortage of British hosts, so there is no prospect of everyone who needs one finding one, even in the most compassionate circumstances. Some of the most compassionate circumstances, such as where a child is separated from a parent, are the hardest to match with a third party host, because it’s really inappropriate to ask a stranger to host your child.”

She added that Ukrainian hosts were often the most “ideal option” for new arrivals as they can speak their own language and share lived experience of arriving in the UK.

The Public Accounts Committee (PAC) has published a new report on Friday raising concerns that the risk of homelessness among Ukrainians in the UK is likely to increase with the closure of the families scheme, calling on the government to build a “full and accurate picture” of homelessness within the Homes for Ukraine scheme – a picture that the committee found the government is currently lacking.

The PAC has also called on the government to clarify what options for permanent settlement will be available under current plans.

Blair said she believed the Home Office’s unexpected announcement was primarily designed to cut migration numbers rather than to "simplify" the scheme for refugees. She also called on the government to provide further clarity.

“It may be that the Home Office’s intention is that Ukrainians in this situation should all claim asylum, but so far Ukrainians have been strongly steered away from the very dysfunctional and delayed mainstream asylum process,” she said.

“There is a need for much clearer communication on options for Ukrainians who are in the UK on a time-limited visa and who then cannot return to Ukraine. If a large number of additional asylum claims are anticipated then that is a problem, because the legal aid advice sector for asylum has collapsed already, with more than half of asylum seekers unable to access legal advice.”

A Home Office spokesperson said: “Changes to our Ukrainian visa schemes are both lawful and proportionate. Homes for Ukraine provides a route for all Ukrainians to come to the UK.

“Since the launch of our Ukraine schemes, the UK has offered or extended sanctuary to over 280,000 Ukrainians. Our priority remains continuing to provide safe and secure haven for those fleeing the ongoing conflict, whilst providing certainty and assurance for Ukrainians in the UK on their future as the war continues.”

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