September 2016 UK Immigration Update

by Morgan Lewis
Contact

Morgan Lewis

New developments include a number of Immigration Act provisions, changes to the recording of right-to-work checks, and early invitations to sponsor licence extension applications.

Although the United Kingdom has voted in the referendum to leave the European Union, at present, the European Economic Area (EEA) and Swiss nationals continue to have the right to be employed in the United Kingdom. This situation will likely be the case for some time, and we will closely monitor developments and proposed changes.

In the interim, employers may wish to undertake an employee audit and update or compile a record of employees to identify all EEA and Swiss nationals, their job titles, and their salaries (in case such information is required in the future for immigration purposes). This will also help identify any other immigration options available to key employees to obtain longer term permission to work in the United Kingdom or for UK nationals to work in other EEA countries.

We recommend that EEA nationals obtain confirmation of their EU rights as soon as possible to ensure that their position in the United Kingdom is as secure as possible. EEA nationals should gather and retain evidence relating to their residence in the United Kingdom and prepare a schedule of overseas travel. Such individuals may be able to apply for a registration card confirming that they are exercising their treaty rights, or they may be eligible to apply for permanent residence.

In accordance with current European regulations, EU nationals who have lived in the United Kingdom for at least five years and who have during that time exercised EU Treaty Rights (e.g., working, being self-employed, or being a student) may be eligible to apply for a permanent residence card to evidence this.

The provisions regarding an application for British citizenship as an EU citizen were recently amended to introduce the requirement that applicants first apply for a permanent residence document before making an application for British nationality.

Changes to Illegal Working Rules

In July, a number of Immigration Act 2016 (the Act) provisions took effect that will have an impact on employers and their employees, including a new criminal offence for individuals who work with UK immigration permission. The Act builds on the Immigration Act 2014 provisions and forms part of the government’s manifesto promise to reduce illegal working and net migration to the United Kingdom.

Offence of Employing Illegal Workers

The 2016 Act has reduced the threshold for the offence of employing illegal workers—an employer now commits a criminal offence if it employs an illegal worker and it knows or has “reasonable cause to believe” that the person has no right to do the work in question. This widens the scope from the previous criminal offence for which "actual knowledge" of an employee working illegally was required for prosecution. The lower threshold means prosecuting an employer is easier, and the maximum prison sentence has been increased from two to five years and/or an unlimited fine.

New Offence of Illegal Working

A migrant now commits an offence of illegal working if he or she knows or has reasonable cause to believe that he or she is unable to work by reason of immigration status. The individual’s knowledge is tested on the basis that his or her leave to enter or remain and work in the United Kingdom is no longer valid or has ceased (whether by curtailment, revocation, cancellation, passage of time, or otherwise). This new offence covers all types of work, including apprenticeships and self-employment (not just employment). Those convicted of working illegally in the United Kingdom may be personally liable for a fine of up to 51 weeks’ pay and/or up to six months’ imprisonment.

Changes to Recording of Right-to-Work Checks

New prevention of illegal working guidance published in July now requires that when employers undertake the right-to-work check and take copies of original documents in the presence of a prospective employee, they ensure the documents are signed and dated and include a declaration on the copy stating, “The date on which this right-to-work check was made: [insert date]”. Documents evidencing the right-to-work checks should now include this additional wording.

Read the full guidance on the right-to-work checks.

Tips for Compliance

Employers should take the following steps to maintain compliance:

  • Ensure that they have a clear right-to-work policy, that right-to-work checks are conducted in full before employees start work, and that original documents are obtained, checked, and copied in accordance with the Home Office guidance
  • Ensure that employment contracts place an obligation on employees to report any change to their immigration status and also provide for an express right to terminate the employment where an employee is not entitled to work in the United Kingdom
  • Ensure that all documents checked comply with the Home Office’s list of acceptable documents (note that this changes periodically) and that any photocopies of documents are complete and clear
  • Always record the date on which each check was carried out, keep a record, and set reminders of when any follow-up checks must be made
  • Be aware of the additional checks required if an employee is a student with work restrictions
  • Be mindful that some immigration permissions only relate to specified roles, and therefore there may be implications if an employee’s role changes
  • Ensure that records of checks are easily accessible so they can be provided quickly if requested
  • Take steps to address an employee’s employment should his or her personal circumstances change during employment that may affect his or her visa

Tier 2 Sponsor Licence Renewals

The Home Office has invited a number of Tier 2 sponsors to apply to extend their licences early. Sponsors should be aware that by submitting a sponsor licence extension application, they may receive an unannounced compliance visit from the Home Office and therefore should undertake a full immigration audit before submitting an application. In addition, the sponsor licence extension application must be submitted with the consent and approval of the authorising officer.

Changes to Tier 2

In autumn 2016, changes to the Tier 2 (Intra-Company Transfer) (ICT) and Tier 2 (General) route are due to be implemented, which will make it more difficult for multinational companies to transfer foreign employees into the United Kingdom.

These changes include

  • the minimum salary threshold for Tier 2 (General) will increase from £20,800 to £25,000 and for Tier 2 (ICT) Short Term route will increase from £24,800 to £30,000;
  • the Tier 2 (ICT) Skills Transfer category will be abolished;
  • the minimum salary threshold for the Tier 2 (ICT) Graduate Trainee route will reduce to £23,000, and the number of places will increase to 20; and
  • the immigration health surcharge will be introduced for all individuals applying under the Tier 2 (ICT) route.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Morgan Lewis | Attorney Advertising

Written by:

Morgan Lewis
Contact
more
less

Morgan Lewis on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.