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 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.
In February 2019, shortly after the launch of EU Settlement scheme for EU nationals to apply for their UK status, my colleagues and I visited one of our global media client’s offices to present on the new EU Settlement Scheme at a town hall meeting with all of their EU national employees.
Gone are the days of computer gaming being viewed as a secluded activity; gaming is now a thoroughly social experience that attracts a global audience of millions and players can compete for large sums of money and celebrity. This burgeoning industry is largely in a virtual world and has developed in a blockchain, decentralised fashion. Often the UK government talks up the UK gaming industry and how keen the government is to support this sector, and there have been instances that show support, but when it comes to playing games competitively, law and regulations have not yet caught up.
In the recent case of TMG Brokers Ltd (In Liquidation) (also known as: Baker v Staines) the High Court held a director of a company to be jointly and severally liable for payments made by his co-director out of the company’s bank account which were made without proper authority and amounted to disguised distributions of capital. The fact that he had placed trust in the other director for the company's financial affairs did not excuse him from performing his duties.
The UK left the EU in January 2020, in accordance with the Withdrawal Agreement there has been a grace period in place since 1 January 2021 which ends on 30 June 2021. The basis of the grace period is that those EU citizens (and EEA and Swiss citizens) who were residents in the UK on or before 31 December 2020 have until 30 June 2021 to apply to the EU Settlement Scheme.
The furore around the announcement by a number of football clubs of their intention to create a European Super League has led to governments displaying their opposition to the idea and issuing threats on the legislative leverage that could be used to stop the breakaway league from getting going.
Following the release of the Hill Report at the start of last month, the FCA has announced that it is going to open a consultation into changing the Listing Rules and connected guidance with a view to encouraging the listing of Special Purpose Acquisition Vehicles (SPACs).
On 9 March 2021, the Care Quality Commission (“CQC”) and Equality and Human Rights Commission (“EHRC”) published a new memorandum of understanding agreement (“the MoU”). The MoU seeks to increase the effectiveness of the two organisations’ work in safeguarding the wellbeing and rights of people receiving health and social care in England, through developing a supportive framework and strategic partnership.
Any sense of a post-Brexit slowdown in UK immigration changes was quickly swept away last week with a thorough spring clean and polish to a wide range of rules. As is commonly the case at this time of year, a statement of changes in the Immigration Rules was released in advance of 6 April when many of the changes will come into force. We set out the main changes below and also include a quick summary of the headlines from the Budget on how new immigration categories aim to assist with the economic recovery.
COVID-19 has had a severely damaging affect on all organisations and no less so those in the charitable sector. Be that on a dramatic hit to donation levels, resourcing issues through furloughing or redundancies and difficulties in delivering programmes and training. In a battle to survive and deliver on core services, it is easier than ever to forget crucial internal risk and compliance processes.
Following a request by the Department of Business, Energy and Industrial Strategy (“BEIS”) ICSA has prepared a report assessing the effectiveness of the independent board evaluation process introduced in the 2018 update of the UK Corporate Governance Code (the “UK Code”).
What happens when a director commits fraud by misappropriating company assets? Or what of the director who continues trading knowing that the company has no realistic prospect of paying its debts as and when they fall due? To whom does a director owe duties at that point and what recourse is there against that director? This article explores these questions.
The COVID - 19 pandemic will certainly go down in history as one of the worse periods in modern times. Many of us will have stories to tell the future children about a time when the world was held to ransom by the pandemic and people were forced to stay home and could only leave if they had a legitimate reason, such as going out for medicine or food. So, what of those who are “home” but, don’t have the choices we do?
The Tech Nation Visa (officially known as the Global Talent visa) enables the brightest and best tech talent from around the world to come and work in the UK’s digital technology sector, contributing their cutting-edge expertise, creativity and innovation to maintaining the UK’s position at the forefront of the global digital economy.
The Hong Kong British National (Overseas) (BN(O)) visa has officially opened for applications on 31 January 2021. Given the circumstances surrounding the introduction of the BN(O) visa, it is quite understandable that applicants may still have questions about this visa route and personal considerations on applying.
In this blog we answer some of your most frequently asked questions about the BN(O) visa to help you consider whether this is the right UK visa path for you and your family. Our earlier blog also details the key highlights of the visa.
EU free movement rules ended for the UK on December 31 2020. As a result, recruiting an EU citizen who is not already living in the UK now involves a visa application.
Citizens’ Rights were one of the first and most important components to be negotiated and protected in the November 2019 Withdrawal Agreement. However, whilst the rights of British citizens resident in the EU and EU citizens resident in the UK before 11pm on 31 December 2020 are protected, free movement of people ended on that date.
As covered in our previous blog, the end of free movement will affect the ability of entertainers from the EU to work in the UK. But recent press has also surrounded the ability, or lack of it, of touring British citizen performers to work in the EU.
The UK’s Immigration Rules include general grounds for refusal which most immigration applications must not fall foul of – the general grounds are divided between mandatory and discretionary grounds, under which applications must or may be refused respectively. The general grounds now also apply to most EEA nationals wishing to enter the UK.
Dramatic changes to our immigration system are taking effect. A new points-based system kicked in on 1 December 2020 affecting businesses wishing to employ non-EU citizens which will also apply to EU citizens (including from the EEA and Switzerland) when freedom of movement ceases on 1 January 2021. So, how can employers prepare for the new changes?
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