Immigration update – looking ahead, key changes and practical steps to take now

In this immigration update we flag the key issues for employers to be aware of now that the deadline under the EU Settlement Scheme (30 June 2021) has passed.

Immigration law has seen monumental change recently, which means it is essential for employers who employ foreign nationals, in particular EU nationals, to keep immigration issues at the top of their agenda.

From now on, it is likely that European nationals could encounter additional queries at the border in relation to their activities, or requests for proof of their right to work in the UK.

With that in mind, in this article we cover:

1. Top four action points for employers to address now and in the coming months
2. The EU Settlement Scheme – what happened on 30 June? Issues to consider when applying for a sponsorship licence
3. Right to work checks – what has changed?
4. Residence documents – tricky issues
5. Visitors to the UK – what employers need to know about the new rules

1. Top action points for employers to address now and in the coming months

1. Ensure that your employees with responsibility for immigration processes are aware that EEA and Swiss nationals can no longer simply enter the UK on the basis of a European passport, to enter to live and work in the UK. If such individuals wish to come to the UK to work or to undertake an internship they will need to obtain immigration permission first. The application for permission to enter will normally need to be done from their country of origin or residence. The immigration process can take weeks and in some cases months, so plan ahead and seek advice at an early stage. Immigration applications can also be costly so try to budget appropriately.
2. Multinational businesses with operations in the UK who may wish to transfer European nationals to work in the UK should register with the Home Office as a sponsor and ensure that they are complying with their obligations as a sponsor. Even if you do not have an immediate requirement, do remember that it is always best to start the process early as it can take several weeks/months to obtain a sponsor licence once it becomes relevant to your business.
3. Ensure that you have robust right to work checks in place for all employees. Employers will need to check that all individuals, including EEA and Swiss nationals, have the right to work in the UK. It is worth noting that the rules and processes for EU nationals changed from 1 July 2021, and although this requirement only applies to those starting work on or after 1 July 2021, employers may also consider carrying out retrospective checks on EEA and Swiss nationals who started work before that date, to satisfy themselves that the entire workforce is immigration compliant.
4. Check whether your business employs any EEA and Swiss nationals who are current employees but may not actually have any lawful right to live and work in the UK. If this is the case, both the business and the individual should take advice urgently.
   There are certain gaps in the immigration system which mean that in some cases it may not be possible for EEA or Swiss nationals to come to the UK to work. This particularly affects those businesses with a need for lower skilled roles or those individuals who are self-employed – in these circumstances, take advice.

2. The EU Settlement Scheme – what happened on 30 June? Issues to consider when applying for a sponsorship licence

The deadline to apply under the EU Settlement Scheme for settled or pre-settled status ended on 30 June.

The end of free movement means that those EU nationals must qualify under one of the alternative UK immigration routes in order to stay. An example would be sponsorship by a UK company as a Skilled Worker.

What options do you have if you miss the deadline? 

Is there any leeway?  In most cases, no. Late applications will only be accepted if there are ‘reasonable grounds’ for the delay, with a non-exhaustive list of examples provided in guidance. These include where the individual has a physical or mental capacity and/or care or support needs; a serious medical condition or significant medical treatment (including COVID-19); been a victim of modern slavery; been in an abusive or controlling relationship or situation; or other compelling practical or compassionate reasons. Each case is fact-sensitive and individuals will need to provide evidence to demonstrate why they couldn’t meet the deadline.

It’s crucial that anyone in any of the above example situations applies as soon as possible and provides all available supporting evidence. That said, it may be years before it is possible to escape from modern slavery or a controlling relationship, in order to submit an application. It is not clear whether the Home Office will impose a definitive deadline, although it has said that it will give individuals the ‘benefit of doubt’ and that staff will take a ‘flexible and pragmatic approach taking into account the circumstances of each case’.  Who knows what this will mean in practice?

What should employers do about employees who miss the deadline?

If you recruited an EU citizen before 30 June you can ask if they have applied for settled or pre-settled status (see commentary on right to work checks below), but importantly you cannot require them to evidence status until after 30 June 2021. 

Employers are allowed to assume that they have the right to live and work in the UK provided they carried out standard ‘right to work’ checks. It could therefore be some time before an employer discovers that their employee no longer has the right to work in the UK.

Retrospective checks are not required and employers can rely on the statutory excuse (protection against civil fines). That said, many employers are planning to check employee status after 30 June to ensure they do not have illegal workers on their books.

We recommend that employers:

• engage with all staff
• encourage staff to tell them whether settled or pre-settled applications have been made and whether these have been successful
• point them in the direction of reliable and up to date information
• consider writing to staff individually to ensure they understand any required action they may need to take now that the deadline has passed
• diarise expiry dates for pre-settled status so the employer can undertake a follow up check.

Across the UK, thousands of businesses are desperately trying to find skilled staff to fill vacancies. The shortage of skills is partially due to the ending of the free movement of workers between the UK and the EU following Brexit. In other cases, shortages are the result of growing in-demand sectors for which there is a general lack of skilled workers in the UK – for example, in the healthcare and IT sectors. To resolve the issue, more businesses than ever are applying for a Skilled Worker sponsor licence from the Home Office to enable them to sponsor foreign nationals to work in the UK. Part of our role as specialists in immigration law and global mobility is helping small, medium, and large organisations to acquire a sponsor licence as quickly as possible and (just as important) to retain it for as long as is needed. Some of our top tips for Skilled Worker sponsor licence applicants to ensure they receive a positive decision in the shortest possible time include:

 Before you apply, check the eligibility and suitability requirements

Eligibility

• You must provide all of the documents required in Appendix A of the sponsor guidance
• Your business must have a trading presence in the UK.

Suitability

• Your business must show that it has the HR systems in place to manage sponsored workers – the importance of this requirement cannot be overstated
• The business needs to show that it meets the specific requirements of the route, or routes, in which you are applying to be licensed:  for example for skilled workers, and/or for intra-company transferees
• there is no evidence of the previous non-compliance by the business

It’s vital to ensure that the business has systems in place to manage Sponsored Workers: in order to successfully obtain a sponsor licence, UKVI will ask for evidence, often during a during a pre-licence compliance visit that the business has the necessary systems, people, and processes in place to meet the overall duties of a sponsor licence holder, including reporting and record-keeping requirements. Crucially, understanding and implementation of the correct systems and processes ensures that a sponsor can remain compliant.

Think about putting in place a calendar/diary system to ensure staff adhere to Sponsor Duties to ensure the sponsored business keeps track of all sponsored workers. Remember that sponsor licence holders risk losing their right to employ overseas staff, and could potentially lose the right to employ or transfer non UK nationals to the UK business if they employ an illegal worker, even if this happens inadvertently, or if they fail to adhere to the licence’s reporting and record keeping requirements.

3. Right to work checks – what has changed?

Right to work checks are a mandatory part of the recruitment process. Employers are to conduct the usual pre COVID-19 right to work checks on their employees on or before their first working day, and  to follow up these checks before the visa end date.  Following the end of Free Movement, a grace period was introduced on 1 January 2021 which gave EU, EEA and Swiss nationals (‘EEA nationals’) as well as their family members extra time to secure immigration status under the EU Settlement Scheme. The grace period ended on 30 June 2021 and all EEA nationals and their family members now require immigration status to live and work in the UK (with the exception of Irish nationals.)

From the end of the grace period, employers should note that EEA passports and national ID cards alone are not  sufficient evidence of an EEA national’s right to work in the UK. As such, employers carrying out a right to work checks for EU nationals will need to obtain additional evidence in order to establish a statutory excuse against illegal working.

In most cases, the additional evidence will be in the form of pre-settled or settled status obtained under the EU Settlement Scheme which is held digitally. s EEA nationals are not  able to provide a physical document, employers will need to use the Home Office’s online checking service to determine whether an EEA national has the right to work in the UK. When using the checking service, an employer will need to use the employer portal of the service to establish the statutory excuse (a defence against a civil penalty) If the employee portal is used when conducting the right to work check this will not establish a statutory excuse.

Where an EEA national cannot prove their status using the Home Office’s online checking service, employers are expected to give every opportunity to allow the individual to demonstrate their right to work through other means – for example, there may be many reasons why an EEA national cannot evidence their status using the online checking service and in order to avoid discrimination, employers should be flexible in considering alternative evidence of right to work.

Employers do not need to carry out retrospective checks on those who had a COVID-19 adjusted check between 30 March 2020 and 31 August 2021. They will maintain a defence against a civil penalty if the check they have undertaken during this period was done in the prescribed manner, or as set out in the COVID-19 adjusted checks guidance. Importantly, employers must continue to check the prescribed documents set out in the Home Office’s employer guidance. Note that it is an offence, punishable by large fines or even criminal prosecution, to knowingly employ a foreign national without the right to work in the UK.

To summarise, employers will need to familiarise themselves with the changes to remain compliant. Key points include:

• EEA national passports and national identification cards will no longer be acceptable as evidence of Right to Work in the UK (except for Irish nationals)
• Evidence of status under the EU Settlement Scheme is acceptable
• A new acceptable document is the Frontier Worker Permit, issued to those EEA nationals who regularly commute from the EU but who live in the EU, and who began working in the UK before 31 December 2020
• EEA and Swiss nationals will be required to prove they have a right to work in the UK through their immigration status rather than their nationality. The online right to work check service can be used, or physical documents can be checked (such as evidence of their confirmed status under the EU Settlement Scheme or the Immigration Rules, or a pending application with a Positive Verification Notice from the Home Office.

Note that COVID-19 concessions which allow virtual right to work checks until 31 August 2021 have been formalised in the Code.  

What should employers do to ensure they are compliant?

• Update internal Right to Work procedure documents.  Employers should review internal process and procedure documents to ensure that these reflect the updated documentation which must be viewed for checks conducted from 1 July 2021.
• Provide staff refresher training on the updated guidance. Ensure all staff who conduct Right to Work checks are fully familiar with the new documents to request from EEA nationals and how these checks can be carried out, including the operation of the Online Right to Work Check Service.

When should follow-up checks be conducted?

Employers need to recheck the right to work of those individuals who have time-limited permission to work in the UK. This should occur when their previous time- limited permission comes to an end, to prevent people from overstaying their immigration leave. Employers have the choice of either the manual or the online right to work checks for the follow-up, irrespective of the original method.

The obligation not to discriminate when conducting right to work checks during the recruitment process remains fundamental. Checks should be carried out on all potential employees, including British citizens.  Basing status checks on appearance or assumptions is likely to fall foul of the law and expose the business to discrimination claims.

4. Residence documents for EEA nationals  – tricky issues

What about employees who already have Permanent Residence as EU nationals under the previous rules?

Some long-term resident EU nationals have previously been issued with permanent biometric residence cards (BRC) issued under the previous rules (known as the EU Regulations) which allow them to remain in the UK indefinitely. It has been the case that these cards would cease to be valid on 30 June 2021. However, the Home Office has recently changed its policy to confirm that these cards can be used both by individuals who have status under the EU Settlement Scheme (EUSS).

What if EU Settlement Scheme status is still to be confirmed?

Those who do not have status under the EUSS can only use their BRC after 30 June 2021 on oneoccasion to travel to and enter the UK. They must then apply under the EUSS within 28 days.

The difficulty with this policy is that an application will be made after the deadline of 30 June 2021 has passed. Therefore, the employee would not have residence rights under the ‘grace period regulations’, and would not have the right to work, rent private accommodation or have access to benefits or public services until such time as their status is approved. Helpfully, the Home Office have confirmed that this ‘grace period’ is to be extended to 31 August 2021.

It’s not yet clear what the position will be for those who have applied under the EUSS but the decision is pending. Subject to any further clarification, it would appear that it may not be possible to enter the UK until approval is received. So employees should bear in mind that if they:

(a) depart the UK during processing, their BRC will not permit reentry; and

(b) apply while physically abroad, they will not be able to reenter the UK.

Note also that physical evidence of EUSS status is still needed for some purposes. An example would be for visa nationals (for example, nationals of India, China & Russia amongst others) to be able to prove to airlines, prior to boarding, that they have permission to enter the UK.

EEA family permits

These permits were issued to family members of EEA nationals resident in the UK, and allowed close family members and unmarried partners of EEA nationals to join their family members in the UK.   We await any updates to the Home Office’s policy in this regard and unless it is revised, such permits will no longer be valid after 30 June 2021. An application under the EUSS as a family member will be required if family members need to enter the UK after this date. 

5. Visitors to the UK – what employers need to know about the new rules

What is changing?

As EU nationals coming to the UK have enjoyed the right of free movement, there have been limited checks of EEA and Swiss nationals’ immigration status upon arrival in the UK.  But reports and figures show that an increasing number are now being refused entry at the border.

Businesses will need to ensure that EEA and Swiss nationals do indeed qualify to come to the UK to avoid them being turned away at the border.

As the rules for coming to the UK to visit or to work have become more far-reaching and now apply to many more people coming to the UK, it is important to know what visitors are allowed to do when they come to the UK.  It’s easy to forget that these visitor rules now apply to EEA nationals who will have to, now that freedom of movement has ended, show that they qualify to enter the UK, in order to avoid being stopped at the port of entry and refused permission to enter.   EEA nationals may find that they are more likely to be stopped at the border and questioned much more extensively, and they could be refused entry where evidence is insufficient.    

When will short-term travellers need a visa and how do they get one?

Most nationals wishing to enter the UK for a business trip are not required to obtain a visa before travel. They may simply apply as a visitor on arrival, though certain nationals, known as visa nationals, will need to obtain a visit visa before they travel.  Helpfully for employers, EEA nationals do not fall into this category.

Visa nationals will need to submit a visa application in their country of nationality or in a country where they are a long-term resident. An online application form can be completed, providing supporting documentation for their visit to the UK and attending an appointment to enrol their biometrics (namely fingerprints and a digital photograph).

What are the main restrictions on a business visitor?

Those entering the UK as visitors, including EEA nationals, are normally permitted to remain for a maximum of six months. If the visit is for business purposes, they will need to demonstrate that they will remain employed overseas while in the UK and do not intend to transfer their base to the United Kingdom, even temporarily. They can be paid by a UK company if that is the standard salary payment process for their multi-national employer.  

However, visitors to the UK must not:

• take UK employment
• do work for an organisation or business in the UK
• do a work placement or internship
• directly sell to the public, or
• provide goods and services.

  On the other hand, visitors may:

• attend meetings, conferences, seminars, interviews
• negotiate and sign deals and contracts
• attend trade fairs
• carry out site visits and inspections
• gather information for their employment overseas, or
• be briefed on the requirements of a UK-based customer, provided any work for the customer is done outside the UK.

(This list is non-exhaustive.)

Where the visitor is an employee of an overseas company, they may advise, consult, trouble-shoot, provide training and share skills and knowledge on a specific internal project with UK employees of the same corporate group, provided no work is carried out directly with clients.

Are any fast-track entry programmes available?

The Registered Traveller service allows certain nationals (those from the EU, Australia, Canada, Iceland, Japan, Liechtenstein, New Zealand, Norway, Singapore, South Korea, Switzerland or the USA) to use the ePassport gates (if they have a biometric passport) and are admitted for 6 months. It’s worth noting however that this situation is less favourable for UK citizens as they are not able to use the EU e-gates, and upon arrival in the EU are admitted for three months only.

Covid concessions – an update

And finally…please note: the Home Office has updated its guidance and advice for UK visa applications and temporary residents.  The government has taken the decision not to extend the ‘Covid Visa Concession Scheme’ , which permitted eligible persons overseas who were unable to return to the UK due to coronavirus travel  restrictions and whose permission has expired to enter the UK and make an application for permission to stay or settlement.  They will now therefore be subject to pre-pandemic rules relating to entry and stay in the UK.