Visas Still Required: The UK Response to the Protection Needs Generated by Russian Aggression in Ukraine
Forum on the EU Temporary Protection Responses to the Ukraine War
Contribution by Alan Desmond, Lecturer, Leicester Law School, University of Leicester
13 April 2022
As of 11 April 2022, the UK has in place three free visa schemes to assist persons affected by the conflict in Ukraine. The Ukraine Extension Scheme caters for Ukrainians already present in the UK, while the Ukraine Family Scheme and the Homes for Ukraine Sponsorship Scheme are aimed at Ukrainians outside of the UK. All three schemes have been included as an Appendix to the UK’s labyrinthine Immigration Rules, a regularly revised document that sets out the criteria for granting or refusing permission to enter and remain in the UK which the Secretary of State for the Home Department is empowered to make under the Immigration Act 1971. The three schemes offer protection that is somewhat analogous to that provided by EU member states under the Temporary Protection Directive (TPD), as implemented by the 4 March 2022 Decision of the Council of the EU.
The initial response of the UK government to people fleeing Ukraine following the Russian invasion on 24 February 2022 contrasts sharply with the reaction of the EU and its member states. While the EU decided with lightening-speed to make temporary protection available for most people fleeing Russian aggression in Ukraine, the UK came in for criticism for dragging its feet in reducing bureaucratic obstacles to entry for Ukrainians, and continues to treat Ukrainians as visa nationals. Moreover, the UK initially made visas available only for Ukrainian citizens with family ties to the UK. At the beginning of March, however, the government announced plans for an “uncapped sponsored humanitarian visa route” to facilitate entry to the UK for Ukrainians with no ties to the country. This has crystallised as the Homes for Ukraine Sponsorship Scheme.
In this contribution, I begin by examining the protection available for Ukrainians present in the UK at the time of the Russian invasion (the Ukraine Extension Scheme) before going on to identify the steps taken by the UK to assist persons fleeing Ukraine as a result of Russian aggression (the Ukraine Family Scheme and the Homes for Ukraine Sponsorship Scheme). I illustrate how the initial highly restrictive approach adopted by the UK has been relaxed to facilitate entry of a wider pool of Ukrainians. Despite this relaxation, Ukrainians who were present in the UK prior to the Russian invasion continue to be in an unsatisfactory situation vis-à-vis family reunification, and all Ukrainians seeking entry are required to apply for visas.
Avenues of Protection for Ukrainians in the UK
The general approach of the UK to Ukrainians present on its territory, as articulated on 16 March by the Parliamentary Under-Secretary of State for Safe and Legal Migration, is that “no one will need to return to Ukraine for immigration reasons. They will return only if they choose to return.” A number of piecemeal policy changes were made in the immediate aftermath of the Russian invasion of Ukraine to allow specific categories of Ukrainian already lawfully present in the UK, including those on skilled worker, student, seasonal worker and visitor visas, to extend their permissions to remain or switch to another visa. These policy changes were consolidated and streamlined in the Ukraine Extension Scheme which was announced on 29 March 2022 and is scheduled to open on 3 May.
The Ukraine Extension Scheme is open to Ukrainians lawfully present in the UK on or before 18 March 2022; Ukrainians lawfully present in the UK immediately before 1 January 2022 whose permission has since expired; and children born to Ukrainian citizens in the UK after 18 March 2022. Such persons will be granted access to the labour market, study, and welfare assistance for a maximum of three years and their partners and children, if already present in the UK as dependants, may also apply. There is no provision for beneficiaries of the Extension Scheme to apply to bring family members from Ukraine or other countries to the UK. A practical means of overcoming this obstacle is presented by the Homes for Ukraine Sponsorship Scheme discussed below. As noted by Georgios Milios in his contribution to this Forum, failure to facilitate family reunification for Ukrainians may raise an issue under Article 8 ECHR. Under the Human Rights Act 1998 public authorities in the UK are prohibited from acting in a way that is incompatible with an ECHR right, and courts and tribunals are obliged to take into account any relevant Strasbourg jurisprudence when determining a question concerning a Convention right.
Ukrainians who have been unlawfully present in the UK since before 1 January 2022 are excluded from the scope of the Extension Scheme. There is, however, nothing to prevent such persons from applying for asylum which, given the ongoing situation of armed conflict in Ukraine, is likely to lead to a grant of refugee status or humanitarian protection, the equivalent of subsidiary protection under EU law. Asylum seekers are not, however, entitled to work while awaiting the outcome of their asylum application, and may not apply for family re-unification prior to a protection status being granted.
Persons who fall for exclusion from international protection are also ineligible for the Extension Scheme. The Scheme operates the wider grounds for refusal set out in Part 9 of the UK Immigration Rules, including where an individual’s presence in the UK is not conducive to the public good because of their conduct, character, associations or other reasons (including convictions which do not fall within the criminality grounds).
Ukrainians precluded from refugee status, humanitarian protection and the Extension Scheme may rely on more than the general assertion that Ukrainians will return to Ukraine “only if they choose to return” for protection against expulsion. They may make an Article 3 ECHR-based challenge to removal which may result in a grant of restricted leave.
Support for persons fleeing Ukraine since 24 February
The UK has put in place two free special visa schemes for Ukrainians, the Ukraine Family Scheme and the Homes for Ukraine Sponsorship Scheme, both of which were incorporated into the UK Immigration Rules on 29 March.
The Ukraine Family Scheme
The Ukraine Family Scheme, launched on 4 March, allows UK citizens and certain immigrants (those with permanent residence; refugee status; humanitarian protection; EU settled status or pre-settled status) to sponsor family members to join them in the UK if those family members were ordinarily resident in Ukraine on or immediately before 1 January 2022. Family members who are already present in the UK may also be sponsored as long as they were resident in Ukraine prior to 1 January 2022. Ukrainians present in the UK on work or student visas are, however, unable to act as sponsors for their family members. Similarly, beneficiaries of the Ukraine Extension Scheme (discussed above) may not sponsor family members under the Family Scheme.
The Ukraine Family Scheme operates a very broad definition of family member. It includes the UK-based sponsor’s immediate family which covers his or her partner and any minor children of the sponsor or the sponsor’s partner. The fiancé(e) or proposed civil partner of the UK-based sponsor is also eligible to apply for a visa. Extended family members who may be sponsored include the parents, grandparents, grandchildren, adult children, siblings, niblings, uncles, aunts and cousins of the UK-based sponsor. The grandchildren, grandparents, parents or siblings of the UK-based sponsor’s partner may also apply for a visa under the Ukraine Family Scheme. Furthermore, extended family members can also sponsor their own immediate family members. Applicants to the Ukraine Family Scheme must be either Ukrainian citizens or, if not Ukrainian, must be part of a family group that includes an immediate family member who is Ukrainian.
Ukrainian international passport holders may apply to the Scheme online without having to attend a biometrics appointment at a Visa Application Centre (VAC). On the other hand, non-Ukrainians, and Ukrainian citizens who cannot provide a scanned copy of their international Ukrainian passport, are required to present at a VAC to provide biometrics as part of the application. As VACs in Ukraine are currently closed, individuals may present at a VAC in the capital cities of neighbouring countries such as Poland, Moldova and Hungary. To be granted entry clearance to travel to the UK, or permission to stay if already present in the UK, applicants must have provided any required biometrics; and a passport or other document establishing their identity and nationality. The grounds for refusal under Part 9 of the Immigration Rules mean that people with criminal records are ineligible to apply to the Ukraine Family Scheme.
Successful applicants are not required to apply for police registration or to pay the Immigration Health Surcharge. They will be given access to education, the labour market and public funds for a maximum of three years. For unsuccessful applicants, there is no right of appeal or right to an administrative review. Instead, an individual may re-apply under the Scheme.
As of 7 April, 36,300 applications to the Ukraine Family Scheme had been received with 28,500 visas being issued. However, only 10,800 holders of visas under this Scheme have so far arrived in the UK.
Homes for Ukraine Sponsorship Scheme
Ukrainians with no ties in the UK may, since 18 March, apply for a visa under the Homes for Ukraine Sponsorship Scheme, also known as Homes for Ukraine. An absence of ties to the UK is not, however, an eligibility criterion for this Scheme so that Ukrainians with family members in the UK may also apply. An applicant under this Scheme must have been ordinarily resident in Ukraine immediately before 1 January 2022, unless they are a child born on or after that date, and must be a Ukrainian citizen. Non-Ukrainians are eligible only if they are immediate family members of a Ukrainian national applying to the scheme. By contrast with the relatively generous approach taken under the Ukraine Family Scheme, holders of visas under the Ukraine Sponsorship Scheme may only be accompanied by immediate family members. The grounds for refusal under Part 9 of the Immigration Rules also apply to applicants under this Scheme.
Applicants to the Scheme must have been granted entry clearance to travel to the UK. They must therefore apply for entry clearance online from outside the UK by providing required biometrics; a passport or other document establishing their identity and nationality; and the name of a UK sponsor who has offered them accommodation in the UK.
To be approved as a sponsor under this Scheme, an individual must be based, and have at least 6 months permission to be, in the UK. They must be in a position to provide accommodation for a period of at least six months. Approval as a sponsor will be contingent upon satisfaction of suitability requirements. This will involve standard security checks made by the Home Office in respect of all adults who will be living in the same household as the visa holders. After the Ukrainian individual or family arrives, the relevant local authority will also complete checks on the accommodation and living arrangements. Approved sponsors will have the option of receiving monthly ‘thank you’ payments of £350.
As is the case for successful applicants to the Ukraine Extension Scheme and the Ukraine Family Scheme, holders of visas under the Homes for Ukraine Sponsorship Scheme are provided with access to education, the labour market and public funds for a maximum of three years.
Practical Obstacles to Effective Implementation of the Schemes
As of 7 April, a combined total of 41,000 visas had been issued under the Ukraine Family and Sponsorship Schemes, just over half of the total number applied for (79,900). Given the 4 million-plus Ukrainians who have already been displaced from their home country following the Russian invasion, the relatively slow rate of processing visa applications has drawn criticism, particularly in respect of the Homes for Ukraine Scheme. The delay, characterised as unacceptable by the Minister of State for Refugees, is reported to be due in part to a lack of adequately trained Home Office staff and their use of outdated technology in the visa processing offices.
Of equal concern is the fact that despite the processing and approval of 41,000 visa applications, only 12,000 visa holders had reached the UK as of 7 April. The disjuncture between visas issued and entries effected, for which the Home Secretary has apologised, is potentially a consequence of the issuing of visas to individuals rather than to family units, meaning that a family unit will not travel to the UK until all members have received a visa. Such obstacles would be largely removed if visa requirements were waived, a step called for by charities and by some in government.
Ukrainian surrogate mothers and their families
Separately from the three schemes discussed above, it has also recently been announced that the UK will provide visas to Ukrainian surrogate mothers and their families, but it is so far unclear if this discretionary scheme will extend on an equal basis in the case of babies born to Ukrainian mothers outside Ukraine.
Despite the lethargy and confusion that characterised the initial response of the UK to the displacement of people from Ukraine following the Russian invasion on 24 February, the UK government has now put in place three free schemes for those affected by the ongoing conflict in Ukraine. All three replicate much of the core protection content afforded by the EU’s implementation of the TPD. They provide beneficiaries with access to education, employment and social assistance for a maximum of three years. Given that they apply to individuals ordinarily resident in Ukraine before 1 January 2022, the Ukraine Family and Sponsorship Schemes might be said to have a more generous temporal scope than the TPD which, as implemented, places obligations on member states only in respect of individuals who fled Ukraine on or after 24 February. EU member states are not obliged to extend the benefit of the TPD to Ukrainians who were outside Ukraine before 24 February, but such Ukrainians may successfully apply to the UK’s Homes for Ukraine Sponsorship Scheme if they were ordinarily resident in Ukraine immediately before 1 January 2022 and satisfy the remaining eligibility criteria.
On the other hand, however, the personal scope of both the Extension Scheme and the Homes for Ukraine Sponsorship Scheme is more restrictive than that of the TPD. Ukrainians who benefit from the Extension Scheme are not entitled to apply for family reunification (though they may use the Homes for Ukraine Sponsorship Scheme to achieve family reunification in practice), and holders of visas under the Sponsorship Scheme may only be accompanied by immediate family members.
The most glaring deficiency in the UK’s response to the Ukraine crisis, by comparison to that of the EU, is the continuing treatment of Ukrainians as visa nationals for the purposes of entry to the UK. Even before the current conflict, Ukrainians could travel visa free to EU member states in Schengen. A final criticism that may be levelled at the UK protection framework for Ukrainians is its silence on what is to happen at the end of the three-year period currently prescribed for beneficiaries under all three visa schemes.
In addition to the three bespoke schemes described above, the UK has also announced plans to allow entry of Ukrainian surrogate mothers and their families. Similar policy measures, tailored to discrete categories of Ukrainian, may be announced as the number of people displaced by the conflict in Ukraine increases on a daily basis.