September 24, 2017

Employers should check that “workers” – not just “employees” – have a right to work in the UK

As further control on illegal working in the UK, last month the Home Office has published latest guidance on right to work checks

For the first time, the Home Office recommends employers should check workers – not just employees – have a right to work in the UK. Its new guidance also provides welcome clarification of other immigration rules and guidance for employers. We have summarised the main changes below, together with our recommendations on what businesses should do now.

The Home Office recommends that employers should check that “workers” – not just “employees” – have a right to work (RTW) in the UK

Previous Home Office FAQs, published in May 2015, said employers were not under a duty to check individuals hired as contractors or subcontractors, although it was open to businesses to do so. The new guidance states that there are “compelling reasons“ why businesses should now check that contractors conduct the correct RTW checks on the people that they employ: risk of reputational damage, disruption to operations, and the impact on health and safety and safeguarding obligations.

It even recommends that employers may also wish to use the guidance to perform RTW checks on those who are genuinely self-employed. Although not stated in the guidance, we anticipate that the Home Office may expect businesses with Tier 2 sponsor licences to abide by this new guidance and assess wider RTW compliance in routine sponsor audits.

This is a subtle shift in emphasis since the previous guidance, and paves the way for a future expansion of the RTW regime to compel businesses, including gig economy and platforms reliant on non-employed labour, to perform checks on workers as well as employees.

Recommendations – check the terms of commercial agreements with third party contractors, (especially those sending workers to your site) to verify that the contractor has carried out RTW checks correctly, and that you have a right to terminate the contract if this has not been done. If your business is hiring self-employed contractors directly, we recommend carrying out RTW checks in the same way that you would when hiring new employees.

Confirmation of additional documentation employers may accept from non-EEA nationals evidencing their status as a family member of EEA national

Non-EEA nationals who are the family members of an EEA national exercising a treaty right in the UK have a right to work in the UK under the EU’s Free Movement Directive, implemented into UK law by the Immigration (European Economic Area) Regulations 2016. Recognising that EEA nationals are not required to obtain formal evidence of their right to work in the UK (such as a visa), the Home Office has listed documents which employers may request from non-EEA nationals relying on their relationship with an EEA national as evidence of their ability to work in the UK. However, relying on this additional documentation will not provide employers with a statutory excuse against a civil penalty for illegal employment if it is later found that the non-EEA national does not have the right to work in the UK.

Recommendation – businesses should remain cautious when conducting RTW checks for these employees and continue to only accept documents as listed on the Home Office RTW checklist, which is available here.

Clarification regarding permission to work if there is a delay in a non-EEA national collecting their Biometric Residence Permit (BRP) card

Most non-EEA work visa applicants, including those using Tier 2 and the Tier 5 Youth Mobility routes, are now issued with a temporary 30 day vignette in their passport to enable them to travel to the UK and collect their BRP card (which confirms their visa conditions, including a visa expiry date). An employer is permitted to rely on the 30 day vignette when conducting the employee’s first RTW check and must repeat the check once the employee has collected their BRP card (the repeat check must be undertaken before the expiry date of the 30 day vignette).

The Home Office has confirmed that if the migrant does not collect their BRP card before the expiry date of the 30 day vignette, the employer may allow the migrant to continue working in the UK if the employer “believes the employee continues to have the right to work in the UK”. If it transpires that the employee does not have permission to work in the UK, the employer could be liable for a civil penalty for illegal employment.

Recommendation – Employers who sponsor non-EEA nationals under Tier 2 and so have a greater involvement in the visa process may feel more comfortable allowing a migrant to continue to work after the expiry date of the 30 day vignette if there is a delay with the BRP card being issued. We would not recommend that employers adopt this practice for migrants holding non-sponsored visas (e.g. Tier 5 Youth Mobility).

Additional penalties introduced by the Immigration Act 2016

Further information is provided regarding the Home Office Compliance Teams’ ability to issue closure notices and compliance orders for employers who repeatedly breach illegal working provisions.

Prevention of illegal working in “high-risk” industries

The Immigration Act 2016 amended existing licensing regimes in ‘high risk’ areas of the UK economy (such as taxis and private hire vehicles and the alcohol and late night refreshment sector). Further guidance is given on the implications for a licensed business that receives a civil penalty for illegal working. For example, the Home Office now has powers to suspend or revoke a business licence.

The Home Office has also taken the opportunity in publishing this new RTW guidance to remind employers about the greater co-ordination across government agencies, including the Home Office and HMRC, to detect and address illegal working. The Home Office will use the full range of sanctions against those found to be employing illegal workers, or individuals working without permission in the UK.

September 21, 2017

HOME OFFICE ISSUES NEW GUIDANCE ON MINIMUM INCOME REQUIREMENT FOLLOWING MM(LEBANON)

The UK immigration system is going on through constant and dramatic changes in 2017.

Following the Supreme Court’s decision in MM(Lebanon) & Ors v SSHD [2017] UKSC 10, some six months after judgment was first handed down,the Home Office has finally issued guidance

The guidance reflects a two-stage approach. First, the decision maker must consider whether the applicant meets the Rules without consideration of exceptional circumstances under GEN.3.2. If they do, then leave is to be granted. If they do not, then leave will be considered under the 10 year route.

MM(Lebanon) was the lead case on the lawfulness of the minimum income requirement of £18,600, which was brought in for partner and child applications, following the introduction of Appendix FM on 9 July 2012. After some four years, the case was heard by the Supreme Court in February 2016, with judgment handed down a year later on 22 February 2017. The Supreme Court found that the minimum income requirement was not unlawful per se, but that the Secretary of State for the Home Department (“SSHD”) were required to properly take into account the best interests of children involved in such applications and other possible sources of income and financial support.

Shortly before the summer recess, on 20 July, the immigration minister announced a new statement of changes (HC 290), the purpose of which was to give effect to the decision in MM(Lebanon). The statement inserted amendments to Immigration Rules (“the Rules”): the General Requirements (in particular GEN.3.1 – 3.3) and a new Paragraph 21A to Appendix FM. However no guidance was issued on how the SSHD would apply the new requirements until 10 August 2017. This guidance applies to all decisions made on or after 10 August.

The decision maker will then only go on to consider other credible and reliable sources of financial support or funds if refusal of the application could result in unjustifiably harsh consequences for the applicant, partner or relevant child as set out under GEN.3.1. In effect, Appendix FM now brings under the auspices of the Rules the SSHD’s full Article 8 considerations.

In essence Paragraph 21A sets out the “objective criteria by which decision makers will assess the genuineness, credibility and reliability of other sources of income, financial support or funds”. The guidance goes on to state that the more these criteria are met, the more likely the decision maker will be satisfied as to the genuineness, credibility and reliability of other sources of income, financial support or funds and thus can count it towards meeting the minimum income requirement.

As such, once a decision maker considers that in refusing the application, this could result in unjustifiably harsh consequences, then if not already done so the decision maker should afford the applicant or their legal representative 21 days to provided further evidence of credible and reliable sources of income or financial support available.

Such sources set out in the guidance include:

a guarantee of third party support;
prospective earnings of the migrant’s partner; or
any other credible and reliable source of income or funds available to the couple.
Secondly, if an applicant does not otherwise meet the relevant Rules, the decision maker must go on to consider under GEN.3.2 and GEN.3.3 whether there are exceptional circumstances which would render refusal a breach of Article 8, right to family and private life, because it would result in unjustifiably harsh consequences to either the applicant, partner or any relevant children involved. The best interest of any relevant child must also be treated as a primary consideration. Should the decision maker consider that such a refusal would result in unjustifiably harsh consequences, entry clearance or limited leave to remain must be granted.

It appears that should an application made under Appendix FM, be subject to consideration under GEN.3.1. – 3.3 and Paragraph 21A, then the applicant will be put on the 10 year parent/parent route to settlement (as applicable) with scope to apply in-country to switch and start the 5-year route should they subsequently meet the minimum income requirement of £18,600.

This is a summary of the recently published guidance: Appendix FM 1.0 Family Life (as a Partner or Parent): 5-Year Routes August 2017.

September 14, 2017

EU citizens living here are vital – Home office letter, September 2017

Dear Brandon

You may have heard about events taking place today in Westminster where EU citizens gathered to express concerns about their rights after the UK leaves the EU.

We know that EU citizens living in the UK want to look to their futures with as much certainty as possible. That is why the UK government is committed to reaching agreement on citizens’ rights as soon as possible through our negotiations with the EU. The Prime Minister has said from the very outset that protecting the rights of EU citizens in the UK and UK nationals in the EU is a top priority.

Writing for The Times’ Red Box today, Immigration Minister Brandon Lewis said that he has personally spoken to many European Union citizens concerned about their future in the UK. He writes:

“I would like to once again send the message that the government recognises how vital you are to this country, we are committed to protecting your rights and we are doing everything possible to reach a final agreement on this issue with the EU at the earliest possible stage.”

You can read the full article on GOV.UK.

The next round of negotiations in Brussels is scheduled for later this month. Citizens’ rights will once again form one of the main areas for discussion and we will write and update you again at the end of that round.

Meanwhile, here is another pointer to the web page status of EU citizens in the UK: what you need to know which has further details about the government’s proposal to protect the position of EU citizens in the UK – and UK nationals in the EU – which was published in June. You can also see this list for all relevant areas being discussed between the EU and UK and what stage of agreement we have reached.

You do not need to take any further action at this point.

Thank you,

Home Office Communications

Top