September 2016 UK Immigration Update

by Morgan Lewis

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.

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