1. Skip to navigation
  2. Skip to content
  3. Skip to sidebar

MAC to examine the role EU nationals play in the UK

The UK government has tasked the Migration Advisory Committee (MAC), the government’s independent advisers on migration, to examine the role EU nationals’ play in the UK economy and society.

Amber Rudd, the Home Secretary, engaged the MAC to look into the British labor market, the overall role of migration in the wider economy, and how a modern industrial strategy should align with the UK’s immigration system. The MAC will consult with a wide cross-section of businesses, employer organizations and EU citizens working in the UK.

The importance of this initiative should not be underestimated, as free movement will end when the UK exits the EU. The government is working on plans to develop the flow of migration from Europe. (See: The rights of EU citizens in the UK, The Global Mobility Review, July 13, 2017 blog post). The UK and the European Commission had key discussions at the end of July, and the next round of negotiations is scheduled for late August 2017.

, , , , ,

MAC to examine the role EU nationals play in the UK

The rights of EU citizens in the UK

The UK government has published a policy paper setting out its offer to EU citizens and their families residing in the UK regarding their right to remain in the country post-Brexit. The offer differs depending on how long a person has been in the UK.

People who have been continuously living in the UK for five years will be able to apply to stay indefinitely by getting “settled status.” A settled status residence document will be issued to prove an individual’s permission to continue living and working in the UK. Those already with an EU permanent residence document will be required to apply. The application process should come online before the UK leaves the EU, hopefully in 2018. The government has pledged to make the process as streamlined and user-friendly as possible.

Other EU citizens in the UK will be subject to a “cut-off date” after which they will no longer be automatically entitled to stay. The date is still to be negotiated, but may fall at any point between March 29, 2017 (the date that Article 50 was triggered) and the date that the UK leaves the EU.

EU citizens who arrived in the UK before the cut-off date, but who have not been here for five years when the UK leaves the EU, will be able to apply to stay temporarily until they have reached the five-year threshold, at which time they also can apply for settled status as set out above.

EU citizens who arrive in the UK after the cut-off date will be able to apply for permission to remain after the UK leaves the EU, under future immigration arrangements for EU citizens. The arrangements have yet to be determined, but the government stated that there should be no expectation by this group of people that they will obtain settled status.

Please visit The Global Mobility Review next month for further information on this development.

, , , , , ,

The rights of EU citizens in the UK

Status of EU citizens in the UK

The Home Office has sent a communication to interested parties following the government’s publication of a paper outlining its offer to EU citizens in the UK. The government has reiterated its position that no action need currently be taken. “The UK will remain a member of the EU until March 2019 and there will be no change to the rights and status of EU citizens living in the UK, nor UK nationals living in the EU, during this time. So, EU citizens do not need to apply for documentation confirming their status now.”

The government’s policy paper sets out that the government will be asking EU citizens to make an application to the Home Office for a residence document demonstrating their new settled status. It aims to make the process as “streamlined and user-friendly as possible for all individuals, including those who already hold a permanent residence document under current free movement rules.” It is expected the new application system will be up and running in 2018.

, ,

Status of EU citizens in the UK

Adult dependent relatives—judicial review challenge

The Immigration Rules pertaining to visa applications ‎made by adult dependent relatives of UK citizens were changed in July 2012. According to the Rules, an “adult dependent relative” must be a close family member of the UK sponsor, i.e., a parent, grandparent. The Rules also require that:

  • The applicant must—because of age, illness or disability—require long-term personal care to perform everyday tasks.
  • The applicant must be unable—even with the practical and financial help of the UK relative—to get the required care in the country where he or she is living, either because it is not available and there is no person in that country who can reasonably provide it, or because it is not affordable.

There was concern at the time of the Rules change that the Home Office (the government department responsible for immigration, passports, counter-terrorism and crime policy), had tightened the Rules too much.

Home Office statistics have borne out the validity of that concern. Since the Home Office changed the Rules, the average number of successful applications each year decreased by at least 93 per cent!

BritCits, an advocacy group, challenged the current requirements. The organization, which campaigns for fair family immigration rules that don’t divide families or force British citizens into exile, brought a judicial review application in the High Court of Justice (BritCits vs. SSHD) challenging the legality of the Rules. It argued that the Rules defeated the purpose of the law under which they were made; that the Rules raised expectations without any real possibility of those expectations being met; and that the Rules interfered with family life.

The High Court issued a judgment dismissing the judicial review application. BritCits requested and was granted permission to appeal. This was dismissed by the Court of Appeal.

Applicants applying in this category will have to make applications with the knowledge that their chance of success is exceptionally low and that despite a recent challenge to the Immigration Rules, they will remain as promulgated. Applicants will continue to have to pull together as much evidence as they can to show that they meet the requirements. Although the Rules require scrutiny of the available care in the adult dependent relative’s home country, the Home Office will consider whether the care is “reasonable” for the applicant and “of the required level” for the applicant. This can include the psychological and emotional needs of elderly parents, for example. Taking such an approach could mean the difference between an application for an adult dependent relative being accepted or rejected.

If BritCits pursues its challenge to the Supreme Court we will of course keep you informed.

, , ,

Adult dependent relatives—judicial review challenge

Criminal record check for Tier 2 UK migrants

uk-intracompany

From April 6, 2017, individuals applying to come to the UK to undertake certain jobs will be subject, along with any adult dependants (over the age of 18 years old) applying with the main applicant, to the requirement under the Immigration Rules to produce a criminal record certificate. The certificate must be produced from any country in which the applicant has been resident for 12 months or more, consecutively or cumulatively, in the previous 10 years.

Effective January 1, 2017, sponsors must inform prospective employees at the point they assign their Certificate of Sponsorship (CoS) that they may become subject to this requirement by the time they make their application. This will enable them to begin seeking certificates where needed at the earliest opportunity, and to lodge a complete application for entry clearance sooner.

Affected job titles are:

  • Dental practitioners
  • Education advisers and school inspectors
  • Further education teaching professionals
  • Health professionals not elsewhere classified
  • Health services and public health managers and directors
  • Medical practitioners
  • Medical radiographers
  • Midwives
  • Nurses
  • Occupational therapists
  • Ophthalmic opticians
  • Pharmacists
  • Physiotherapists
  • Podiatrists
  • Primary and nursery education teaching professionals
  • Probation officers
  • Psychologists
  • Secondary education teaching professionals
  • Senior professionals of educational establishments
  • Social services managers and directors
  • Social workers
  • Speech and language therapists
  • Teaching and other educational professionals not elsewhere classified including Special needs education teaching professionals
  • Therapy professionals not elsewhere classified
  • Welfare professionals not elsewhere classified

The requirement to produce a criminal record certificate already applies to those applying under Tier 1 (entrepreneur) or Tier 1 (investor) and any adult dependant relative of the main applicant in either of these categories.

, , , , , , , ,

Criminal record check for Tier 2 UK migrants

New requirement for public sector workers to speak fluent English

Effective November 21, 2016, public bodies in the UK will be under a duty to ensure that staff in customer-facing roles can speak fluent English (or, if in Wales, fluent Welsh). The purpose of this requirement is to ensure that relevant staff members have a command of spoken English that is sufficient to enable the effective performance of their role.

The new duty applies to both existing staff and new recruits of bodies that carry out functions of a public nature, including, but not limited to, the NHS, local governmental bodies, central government departments, state schools and public corporations.

The responsibility for ensuring that the relevant individuals meet the required level of fluency lies with the public authorities. Employers may decide to measure this formally (e.g., through testing) or informally (e.g., through a two-way conversation during the interview). The government has published a code of practice to help employers meet the correct standard. The code suggests that the level of fluency expected of the staff member will vary depending on:

  • The frequency of spoken communications with the public
  • The topic and length of the spoken interactions
  • Whether the communications are likely to include technical, profession-specific or specialist vocabulary
  • How significant the spoken interactions are to the delivery of service

We encourage all public authorities to make existing staff aware of the new requirement and the consequences of failing to meet the necessary levels of spoken English. Where appropriate, employers may also wish to amend employment contracts to make performance of the relevant roles conditional upon the individual meeting the required standard of fluency. As a matter of best practice, employers should update recruitment processes so that job postings clearly set out the standard of English required for the particular role and adhere to that standard when assessing a candidate’s suitability for the position.

Where an existing staff member fails to meet the necessary threshold, we recommend that employers provide the necessary training and monitor the staff member’s progress. If an employer determines that there has not been sufficient improvement in the staff member’s spoken English within a reasonable period of time, the employer should try to identify whether there is a suitable alternative position available for that staff member or whether the staff member’s role can be modified so that it is not customer-facing. That said, employers should exercise caution before imposing any unilateral changes. Most important, employers should only consider dismissal as a last resort, and we recommend that any employer considering this option seek legal advice first.

In line with this new requirement, employers must set up a complaint procedure that members of the public will be able to use to express dissatisfaction about a staff member’s English-speaking skills. Maintaining necessary levels of fluency will therefore serve to protect an employer’s reputation for customer service by limiting the number of complaints it receives.

, , , ,

New requirement for public sector workers to speak fluent English

UK Visas and Immigration provides premium sponsor licence

uk-visas-and-immigration

For an additional fee of £200, sponsors will be able to subscribe to a new optional premium service.

This will enable sponsors licensed under Tier 2 and Tier 5 to receive expedited review of their sponsor management system (SMS) applications.

This will help sponsors who are frustrated by the long delays in government responses to certain types of SMS requests, including requests for:

  • Annual allocation of Certificates of Sponsorship
  • One-off request for a Certificate of Sponsorship
  • The appointment of a new authorising officer
  • The appointment of a new Level 1 user

, , , , , ,

UK Visas and Immigration provides premium sponsor licence

Byron Burger: A cautionary tale?

UK Border Controls

Popular UK “posh” burger chain Byron Burger has been at the center of a media flurry over the past week or so, as 35 members of its staff were rounded up and arrested in a controversial immigration sting. The controversy largely relates to Byron’s involvement in the sting.

The UK Home Office confirmed that on the morning of 4 July 2016, immigration officers raided Byron branches and arrested 35 “migrant workers” of Albanian, Brazilian, Egyptian and Nepalese nationality. In the initial reports, a senior manager in one of the branches alleged that staff, some of whom had been employed by Byron for as long as four years, had been falsely duped by Byron into attending a health and safety meeting at 9:30 a.m., when immigration officials quickly arrived and started to interview people.

Byron has confirmed that it facilitated the raid at the Home Office’s request but has refused to respond to the claims that it set up the staff meetings on false pretenses. Sometimes silence speaks a thousand words, as they say.

As such, in amongst the few messages of support for Byron, the critics have shouted louder, calling for a boycott of the chain. Two London branches have already been targeted in the backlash, where activists went so far as to release cockroaches and locusts into the restaurants, forcing them to be closed to customers.

But what are the rights and wrongs of this incident? First, the Home Office has acknowledged that Byron complied with its legal obligations, in particular its obligation to carry out “right to work” checks. The Home Office has issued guidance on what checks UK employers need to carry out on new workers (https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/536953/An_Employer_s_guide_to_right_to_work_checks_-_July_16.pdf). Provided that an employer has carried out the appropriate checks, it will have a statutory excuse against liability for a civil penalty if it later comes to light that any worker has been working illegally in the UK. Employers must therefore ensure that the necessary checks are carried out, as the penalty for failure to do so (up to £20,000 for each illegal worker) could be substantial.

The issue with the Byron workers is that, in the course of its own investigation, the Home Office identified that those workers at the center of the alleged immigration breaches had provided false or counterfeit documentation as proof of their right to work in the UK. The Home Office then made a specific request to Byron to assist it with its investigation, which Byron did.

Perhaps, then, the PR nightmare that is the Byron story should be treated as a cautionary tale of how not to assist in a Home Office investigation. The recent trend seems to show that the Home Office is really cracking down on illegal workers and, accordingly, Home Office investigations are likely to become a live issue for a number of employers. Employers need to balance their legal obligations against their more human responsibilities to their staff.

No one is condoning illegal working or the falsification of documentation. However, arguably, if Byron had dealt with the issue more sensitively and compassionately, it could have mitigated the negative press it received. In an era when people have the world at their fingertips, consumers are calling out to see the human face of business.

, , , , , , ,

Byron Burger: A cautionary tale?

New UK penalties for unauthorized foreign workers and their employers starting July 12, 2016

Suit in handcuffs

Effective today, July 12, 2016, employers found guilty of “knowingly” employing unauthorized foreign workers in the UK may face an increased prison term, and unauthorized foreign workers will be subject to criminal liability. This results from provisions of the Immigration Act 2016 which are aimed at further deterring workers who do not have the legal right to work in the UK from entering the nation. Provisions of the Immigration Act 2016, which take effect today, are slated to be implemented in stages over the coming months and while Brexit will certainly have implications for UK immigration law in the long-term, in the short-term our concern is with the provisions that begin to take effect today, which are as follows:

There will be an increase in the criminal penalties that may be applied to employers who employ illegal workers.

  • It is already a crime to knowingly employ an illegal worker, the penalty for which has been a fine of up to £20,000 and a prison term of up to two years. While the level of the fine remains the same under the 2016 Act, the maximum sentence upon conviction has been increased to five years in prison from the current two. In addition, experience has shown that proving that an employer knew that an employee was working illegally can be difficult. Therefore, beginning today an employer will be guilty of this criminal offence if the employer has reasonable cause to believe that an employee was working illegally. It is no longer necessary to prove that the employer actually knew this; only that he should have known it in view of the circumstances.

Illegal working will become a criminal offence.

  • Prior to today, the sanction applicable for employees guilty of working illegally is deportation, and a record of the illegality became part of the person’s immigration file. From today, working illegally will be a criminal offence subject to a sanction of up to six months in prison and/or a potentially unlimited fine. As working illegally is now a crime, any proceeds from working illegally also be subject to seizure as proceeds of crime. This provision has caused particular concern among certain human rights groups who have argued that it may lead to illegal workers feeling unable to speak out against exploitation for fear of themselves being criminally charged.

While UK employers should already be undertaking appropriate right-to-work checks, the stricter provisions that take effect today should serve as a reminder to make sure that current right-to-work checking processes are as robust as they can be.

The ever-changing landscape of UK immigration law has never been more fluid or uncertain than it will be over the coming months. We will keep you updated as matters develop.

, ,

New UK penalties for unauthorized foreign workers and their employers starting July 12, 2016

Brexit, a global perspective in the immediate aftermath…

Brexit Immigration

Following the UK’s EU referendum, the UK has a clear mandate for exit from the European Union. There is doubt, however, about what the future may look like for the UK and its relationship with Europe or the rest of the world. It is likely that there will now be a prolonged transition period, with the next UK government needing time to plan, prepare and negotiate the UK’s future.

Some key thoughts in the meantime:

  • For UK nationals living elsewhere in the EU, and EU nationals living in the UK, there will be no immediate change. Protection of citizens already established in those states is likely to form part of negotiations between the UK and the EU.
  • Free movement of EU citizens is expected to be negotiated as a condition of any trade deal between the UK and the EU. However, if ultimately the UK decides to no longer share in the EU’s right to free movement of labor, then citizens of other member states will not enjoy an automatic right to work, travel and live in the UK. Similarly, UK citizens will not enjoy EU citizenship rights. Prior to the referendum, the UK had already made it more difficult for EU citizens to gain permanent residence in the UK. However, the UK government will be aware that imposing fundamental limits on the free movement of labor at this time could make the UK a much less attractive destination for international businesses and skilled and educated migrants.
  • Nationals of other countries working in the UK, such as from the US, should see no imminent changes. The UK government is saying that the UK is open for business on a global scale. This is an opportunity to grow and strengthen relationships across the globe. At present the UK is not seeing any large-scale recruitment freezes or job losses.
  • Trade and investment are good for the UK’s employment growth and stability. The UK government will want to keep a level playing field with the UK’s European counterparts, and look for opportunities across the globe, at this crucial time. One key area where it will want to display its good practice is data protection. Realistically, a trade deal between the UK and the EU may also mean the UK continuing to be subject to key EU legislation.
  • The UK has a body of homegrown legislation protecting UK employment law rights. The fundamental right that exists in the UK to claim unfair dismissal will not be affected by its withdrawal from Europe. The UK also had discrimination laws in place before its ascension to the EU; EU aims and legislation are so established in UK good employment practice that they are likely to remain fundamentally the same for now. While moving to a US-style system, where employees receive lower overall protection, is possible, it is unlikely in the short term, given the broader cultural change needed to accept the US norms.
  • Subject to the above, EU rights, or improvements in those rights, in the UK may eventually be diminished or lost. However, it seems likely that grand proposals will eventually be reduced to a few smaller, less significant changes. If the UK is not required to keep EU legislation in these areas as part of a broader deal, the government may review and make changes to the current position in a number of areas, such as: (i) harmonization of terms following a TUPE transfer, (ii) limits on bankers’ bonuses, (iii) working time controls, (iv) collective redundancy consultation, (v) agency workers’ rights and (vi) the absence of a cap on discrimination awards.
  • If the UK is no longer subject to the jurisdiction of the European Court of Justice, UK case law may develop in a slightly different direction. This may mean a gradual parting of ways between the UK and EU states.

On balance, it is most likely that the next government will want to preserve the status quo, at least in the short term, and wait for the dust to settle before looking for opportunities to make more fundamental and valuable changes. Dentons will keep you posted as the picture evolves.

, , , , , , ,

Brexit, a global perspective in the immediate aftermath…