All I want for Christmas is… for the UK to re-open for business
Tesco fined £115,000 for employing foreign students who were breaking the conditions of their visas”
Daily Telegraph - 6th November 2012
Immigration raid on Byron Hamburgers rounds up 35 workers”
The Guardian - 27th July 2016
Since the introduction of the Immigration Act 2014, the Conservative government has been open about its willingness to create a “hostile environment” for users of the immigration system, not least anyone who may not have a lawful basis to remain in the UK. It has meant that not only employers but also landlords and banks have been required to take a more active role in assessing the immigration status of customers and tenants. However, in the wake of the Windrush scandal, in June 2018 then Home Secretary Sajid Javid announced “I don’t like the phrase hostile” and instead went for a “compliant environment.”
Regardless of the term for it, what is clear is that D&Os must ensure focus on immigration compliance is maintained at all times. Breaches would not only affect the business, but also potentially the individuals responsible and criminal prosecution is not off the table. Where a director commits an immigration offence they could be disqualified from being a company director due to being deemed ‘unfit.’
A key tool for UK employers who need to recruit talent from outside the EU is Tier 2 of the Points Based System. Whilst the government plans to introduce an Australian-style Points Based System, there is a good chance that Tier 2 will remain at least in some guise. All employers must have a Tier 2 Sponsor Licence to use Tier 2 and a central feature is that certain ‘key personnel’ must be appointed. The person with overall responsibility for the Sponsor Licence is the Authorising Officer (AO). The AO must be a UK based senior level employee or office holder (such as a director) in the UK company. The Home Office will at some stage carry out an onsite audit of the company’s use of its Tier 2 Sponsor Licence. Such audits are often unannounced and so the AO and other key personnel must be ready; no less so in relation to the company’s policies and systems to prevent illegal working.
To have a statutory excuse against employing someone illegally in the UK, employers must have taken a compliant copy of a suitable right to work document before the employment commences. Where an employer is negligent and does not have such an excuse and a worker is found to be working without appropriate permission to do the work in question, a civil penalty of up to £20,000 per worker can be issued. There is a public register of those companies who have been issued with a penalty and so reputational as well as financial damage is caused. Plus civil penalties could lead to the Tier 2 Sponsor Licence being revoked.
Of more concern for D&Os will be the possibility for criminal prosecution. Previously, the test was whether the employer was “knowingly” employing someone illegally. Now it is much broader and includes mere “reasonable cause to believe” they may be employing someone illegally. It is an easier trap to fall into than may immediately appear to be the case – what of an employer that diligently diarises an employee’s visa expiry date? If that employee overstays their visa they could be working illegally and the employer would know about it. The criminal offence can be committed by an individual of the UK employer or the corporate body and penalties include fines and/or imprisonment (maximum 5 years). The Home Office also has the power to close a business down for 48 hours where illegal working is suspected and the employer has received a civil penalty.
Increasingly, the Home Office is joining up the processing of visa applications with other government agencies. For example, employment records are checked against HMRC tax records and some visa applicants are receiving an unpleasant shock. Some of our corporate clients have also started to receive letters from HMRC saying a tax inspector will visit their premises to check the details of their expatriate workforce. In particular, they are keen to see who has been entering the UK as a short term business visitor, no doubt partly to try and align that with the short term business visitor tax rules.
For some time the UK has not counted people out of the UK and so has struggled to adequately ‘track’ and monitor travellers. From 2022 the government plans to rectify that, not only automatically establishing whether someone has overstayed a visa but also whether their UK tax status is correct. Earlier this year nationals of some countries have been able to use the new eGates on arrival at airports in the UK. Whilst great for speedier travel through the airport, as travellers do not receive a stamp in their passport or have an interaction with an Immigration Officer, there is sometimes doubt into which immigration status they have been landed. In addition, as part of right to work checks, employers are now required to check the worker’s first date of entry to the UK. For those who used an eGate and so do not have a stamp in their passport, that leads to the cumbersome requirement to check the worker’s boarding pass or travel ticket to ensure they entered within the validity of their initial visa.
With the Conservative government’s majority following the general election, employers look ahead to the new post-Brexit immigration system and more immigration challenges where new rules and categories of application abound. That includes in relation to their existing EU citizen workforce where at some point, deal or no deal, employers will be required to decipher the rules which apply to each employee and their immigration status. For current EU citizens who do not apply to register their stay in the UK by the required deadline, do they become illegal overstayers without the right to work? With the government’s plans to introduce post-Brexit visa applications for EU citizens, those organisations well used to travellers from Europe-wide offices freely coming into the UK are likely to encounter headaches and further immigration related risks.
Kingsley Napley LLP’s specialist immigration team has been advising businesses and individuals on all aspects of UK immigration and nationality law for over 20 years and is top ranked in Chambers and Legal 500.
The above article is intended to highlight issues that may be of interest only. It does not constitute advice, i.e. is not intended to be a substitute for up-to-date, fact specific and comprehensive legal or other professional advice. If you have any questions arising out of the issues raised, please contact a member of our team on +44 (0)20 7814 1200 or visit our webpage.
Tim Richards is a solicitor with extensive experience in corporate and private client immigration matters and is responsible for the knowledge management and ‘know-how’ development for the immigration team.
The 22nd June is now officially the day we “celebrate” Windrush. As I have written previously, it’s also to recognise the catastrophic mistake made by the government when they wrongly denied people the right to stay in the UK. The Windrush Report was commissioned to investigate how the immigration services managed to make such a huge mistake and gave recommendations with a view to those mistakes not happening again. I would argue that the government doesn’t seem to have incorporated the recommendations from the report, which is incredibly disappointing.
It has now been over two months since Russia launched its military invasion of Ukraine. Since then, thousands of people have died, towns and cities have been destroyed and 13 million people have been displaced. As a result, people around the World have mobilised to help in any way they can and Kingsley Napley also wants to play its part.
Launching on 30 May 2022, the High Potential Individual (“HPI”) visa will be one of several new immigration routes introduced by the Home Office this year. Designed to attract “the brightest and best” to the UK, the HPI visa appears to form part of the Government’s wider plan to deliver an ‘elite points based system’, as announced in their ‘Build Back Better: Plan for Growth’, to ensure the UK maintains its status as a “leading international hub for emerging and disruptive technologies”.
On 24 February 2022 Russian armed forces invaded Ukraine. At the time of writing, hostilities are on going. According to UNHCR over 4 million people have fled Ukraine mainly heading west towards and into EU Member States. On 4 March 2022, the EU opened a temporary protection scheme for Ukrainians (and others who were resident in Ukraine and had to flee) using a directive which was adopted in 2001 but had never been used since. In this blog we will examine the scope of the scheme in light of both the Decision which opened it and the Commission’s operational guidelines issued a few weeks later to clarify Member States obligations. The purpose is to understand what those fleeing Ukraine can expect to receive by way of assistance in the EU and compare the UK’s scheme with it.
As Europe’s largest refugee crisis since World War II has unfolded in reaction to Russia’s invasion of Ukraine, the House of Lords has finalised its reporting stage review of the Nationality and Borders Bill.
The UK government’s so far meagre UK immigration options for Ukrainians are set out in our FAQs.
The Tier 1 (Investor) category was abruptly chopped out of the UK’s immigration system for new applicants at 4pm on 17 February. After previous and on-going reviews, in what appears to have been a hot-headed moment responding to political tensions with Russia, the category has been closed to new applicants. Deadlines (called ‘sunset clauses’) of 17 February 2026 for extension applications and 17 February 2028 for settlement (indefinite leave to remain) applications have also been introduced for those already holding investor status.
As we look ahead to the immigration changes on the horizon for 2022, one big expectation is an expansion of the visa routes available to those looking to work in the UK. Such changes are very welcome given the UK’s on-going demand for top talent. Among those hotly anticipated additions, the Scale-up visa stands out. Here we look at it a little closer and consider what we might expect from this visa option.
In Part 1 of our two-part series on the Department for Business, Energy and Industrial Strategy's (BEIS) White Paper on audit and corporate governance reform (Restoring Trust in Audit and Corporate Governance), we focussed on whether the proposals regarding corporate governance are likely to make the UK a more or less attractive destination for investors.
Progressive developments in immigration law have become a rare phenomenon, so the Home Office’s new policy – which halves the route to settlement for certain young people who have resided in the UK for more than half of their lives – is welcome news.
Conviction cases are ordinarily relatively straightforward for regulators. If a registrant is convicted of a criminal offence, the regulator will generally treat the fact of the conviction as proof the offence was committed – and take action to protect the public accordingly. See Achina v General Pharmaceutical Council  EWHC 415 (Admin) for an example of the difficulties registrants face when they attempt to ‘go behind’ the facts of a conviction.
With the UK Chancellor’s budget announcement tomorrow, many UK businesses will be hoping for some good news on the recruitment front to help alleviate current skills shortages across a range of industries. They are likely to get short shrift. The Government has repeatedly pushed back on requests for sector specific carve-outs to deal with post-Brexit recruitment blocks. Instead, its relentless focus has been on the much more popular and palatable high-skilled immigration, attracting the “brightest and the best” with a focus on innovation, research and technology and the exceptionally talented.
In 2012, as a recently elected MP, Kwasi Kwarteng co-authored “Britannia Unchained: Global Lessons for Growth and Properity”, a political pamphlet which championed risk-taking and innovation in the UK economy, and which ever since has led some to label him a fervent Brexiteer. Appointed as the Business Secretary in January 2021, only a few months later his department (BEIS) published one of the longest and most ambitious government White Papers in recent years.
The Nationality and Borders Bill, the government’s signature piece of legislation on immigration, shows questionable priorities at a time when the UK is in the midst of a wider immigration crisis.
The Youth Mobility Scheme allows employers to access younger workers from countries such as India and Iceland for two years. With skills shortages afflicting critical sectors, now might be the time for the government to consider a youth visa agreement with the EU.
From being the centrepiece of England’s post-Covid recovery with ‘eat out to help out’, the hospitality sector is now struggling to rebuild after lockdowns, furlough and rising food prices. At the same time many restaurants, cafes and pubs are coming up against the hard realities of a post-Brexit immigration policy and discovering what it means for their business.
A recent case has highlighted a trend that that we have seen over recent years, with Employment Tribunals finding that the dismissal of a senior executive can be fair where there has been a breakdown in relations amongst a management team and one director / executive is considered to be more at fault (Moore v Phoenix Product Development Ltd EAT/0070/20). Also, the procedural requirements for such dismissals may be more limited, in this case, the fact that no right of appeal was offered did not render the dismissal unfair.
You have come to the end of your long immigration journey, paid thousands of pounds to UKVI to obtain permission to enter, permission to stay and then, finally, indefinite leave to remain (ILR) (also called settlement). When obtaining ILR, individuals may understandably breathe a sigh of relief – it’s over! For many who, for various reasons, choose not to naturalise or register as British, ILR can provide adequate status to live and work in the UK permanently.
The vast majority of EU, EEA, and Swiss citizens who were UK residents by the end of last year were able to apply to the EU Settlement Scheme by the 30 June 2021 deadline. Applying to the EU Settlement Scheme meant that an EU citizen could stay in the UK for the long term.
The deadline to apply to the EU Settlement Scheme (“EUSS”) was 30 June 2021. But for those who missed it – all is not lost. The Home Office will continue to accept applications from individuals with ‘reasonable grounds’ for having missed the EUSS cut-off point. In this blog, we explore what might constitute a ‘reasonable ground’ and consider the legal implications for those who have fallen short of the deadline.
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