January 24, 2022

British citizenship can be taken away if criminal offending not disclosed

The Upper Tribunal has affirmed the continuing obligation to disclose material facts in applications for naturalisation as a British citizen, including facts which arise after submitting the application. The case is Walile (deprivation: self-incrimination: anonymity) [2022] UKUT 17 (IAC).

Offence committed while citizenship application pending
The facts in this case were particularly unpleasant. Mr Walile applied for naturalisation in January 2010. In March 2010, he raped a child. Shortly afterwards, he left the UK, returning on 3 May. He was issued a certificate of naturalisation the following day.

It is unclear from the judgment when Mr Walile was charged with the offence, but it was evidently after his citizenship application had been granted. In September 2016 he was sentenced to six years’ imprisonment following a guilty plea.

In November 2018, over seven years after the successful application for naturalisation, the Home Office decided to deprive Mr Walile of his British citizenship under section 40(3) of the British Nationality Act 1981. This empowers the Secretary of State to make a deprivation order if she is satisfied that naturalisation was obtained by “fraud, false representation or concealment of a material fact”.

The Secretary of State considered that Mr Walile had concealed a material fact by failing to inform her of the offence committed whilst his application was being considered. She argued that he ought to have known he was required to disclose the offence because he had signed the declaration on the application form promising to inform the Home Office of any change of circumstances. He had also confirmed that he had read Guide AN which at that time stated:

While the application is under consideration we expect you to tell us about anything which alters the information you have given us. This… includes police investigation or anything that may result in charges or indictment.

The appellant appealed, arguing among other things that the requirement to disclose the offence was contrary to the privilege against self-incrimination.

Self-incrimination and public law error
The Secretary of State relied on the Court of Appeal decision in L v C [2001] EWCA Civ 1509, which had found that:

The privilege [against self-incrimination] is against being “compelled” “on pain of punishment” to provide evidence or information. The privilege does not give rise to a defence in civil proceedings, nor give rise to a right not to plead a defence in civil proceedings.

In the event, the self-incrimination point was not pursued at the hearing. The Upper Tribunal agreed that “the privilege against self-incrimination simply does not arise in a case of this kind”.

The tribunal also refused permission to argue a new ground in light of the Supreme Court’s decision in Begum [2021] UKSC 7: that the deprivation decision contained a public law error. This argument arose from the guidance on Deprivation and nullity of British citizenship:

55.7.5 In general the Secretary of State will not deprive of British citizenship in the following circumstances:

Where fraud postdates the application for British citizenship it will not be appropriate to pursue deprivation action…
However, where it is in the public interest to deprive despite the presence of these factors they will not prevent deprivation.

President Lane and Vice-President Ockelton found that there was, in any case, no public law error:

… significant weight needs to be afforded to the opening words “in general” in paragraph 55.7.5 and the closing words, concerning the public interest. In the present case, it is, in our view, obvious that the Secretary of State took the view that the immense gravity of the material fact which the appellant concealed from the respondent meant that there was a significant public interest in depriving the appellant of British citizenship.

The appeal was dismissed and the deprivation decision upheld.

The official headnote
(1) An applicant for British citizenship who commits a criminal offence before the application is decided by the Secretary of State cannot rely upon the privilege against self-incrimination as a reason for not informing the Secretary of State of the crime.

(2) The mere fact that a foreign criminal has children is not a reason to impose an anonymity order, preventing disclosure of the foreign criminal’s name in immigration proceedings in the First-tier Tribunal or the Upper Tribunal.

(3) Begum [2021] UKSC 7 authoritatively explained how the scope of an appeal against a decision under section 40(2) or (3) of the 1981 Act is narrower than the Upper Tribunal and the Court of Appeal previously thought; but it did not introduce the ability to bring an appeal based on public law grounds, which have always been available. [This paragraph of the headnote is missing from the version of the judgment published on Bailii.]

Importance of disclosure
This decision confirms that applicants for naturalisation are required to disclose anything and everything that may cast doubt on their good character, not only at the time of making the application, but also whilst the application is being considered.

As Guide AN confirms, this includes disclosure of any offence “for which you may go to court” even if a criminal charge has not yet been brought. In such circumstances, the privilege against self-incrimination is not a defence for non-disclosure.

If such conduct is not disclosed and later comes to light, it is likely to result in deprivation of citizenship — even that might render the person stateless. And following the Supreme Court’s decision in Begum, the grounds of appeal against a deprivation decision are narrow.

January 7, 2022

Six especially ugly bits of the revised Borders Bill that really should be changed

Page contents
1. No-notice deprivation of citizenship
2. Priority Removal Notices
3. Accelerated detained appeals
4. Abolition of certain appeal rights
5. Notice requirements for removals
6. Insufficient legal aid
Conclusion

The controversial Nationality and Borders Bill had its second reading in the House of Lords this week. One thing that peers on all sides of the house seemed to agree on – even if for different reasons – is that the immigration system is not working well. They’re right.

Official figures demonstrate an unacceptably high level of unlawful decision-making. Half the appeals against Home Office immigration decisions are successful in the First-tier Tribunal. Around one third of judicial reviews lodged against the Home Office are either settled or decided in the claimant’s favour, according to the government’s evidence to the Independent Review of Administrative Law.

Contrary to the Home Secretary’s stated intention of “ensuring access to justice and upholding the rule of law”, the Borders Bill fails to address the urgent issues with the current system. These include the need for access to proper legal advice and a properly funded courts and tribunals system, as well as better first instance decision-making.

Instead, the Bill contains a series of provisions which make these problems worse: weakening appeal rights despite high levels of wrong initial decisions; requiring judges and Home Office caseworkers to give “minimal weight” to some evidence provided by genuine refugees; creating fast-track processes based on policies previously found to be unlawful; and increasing the Home Secretary’s arbitrary powers, such as the authority to require certain cases to be heard artificially quickly, aggravating the risk of rushed and unlawful outcomes. Some were introduced or amended only at report stage in the House of Commons — that is, only after detailed scrutiny by MPs was over.

Below are the specific provisions that Public Law Project and JUSTICE believe will increase the risk of unlawful immigration decisions, make it harder to challenge those decisions, and threaten procedural fairness and natural justice.

1. No-notice deprivation of citizenship

Clause 9 of the Bill has already attracted considerable attention [but you read it here first — Ed.]. Whilst the Home Secretary’s power to deprive someone of British citizenship is not new, this clause will introduce new exceptions to the requirement to give a person notice of that decision. These exceptions are based on a subjective test – what appears to the Secretary of State to be the case, rather than what can be objectively proven – and are drafted extremely broadly. There is no requirement that the power be used only in “exceptional circumstances”, as the Home Office has repeatedly claimed.

If no-notice provisions are deemed necessary, they should be limited to exceptional circumstances, such as when there is no possible way of contacting the person; contain objective tests requiring the Home Secretary to justify her decisions; confer on the Home Secretary an on-going duty to take steps to give notice; and, most importantly, protect access to appeal, for example by suspending appeal time limits until actual notice has been given.

2. Priority Removal Notices

Priority Removal Notices (PRNs) are designed to truncate the period of time in which a person can challenge a Home Office decision to remove them from the UK.

If someone is issued with a PRN, they can be given a “cut-off date” by which they must tell the Home Office their grounds and the evidence they want to rely on in support of their protection or human rights claim to remain in the UK. Anything after the cut-off date is deemed late — in which cases the Bill makes it mandatory for the Home Office and judges to interpret that person’s credibility to be damaged and evidence be given “minimal weight”, unless they can show good reasons.

There are many potential good reasons why a claim might be late; delay due to trauma and difficulties accessing legal advice are just two. But these provisions place the burden on claimants to show those reasons before their claim will be considered fairly. This is despite the fact that the government’s own equality impact assessment acknowledges that “vulnerable people… might find it more difficult than others to disclose what has happened to them; to participate in proceedings; and to understand the consequences of non-compliance with legal requirements”.

Even if there are no good reasons for a late claim, it does not mean that lateness should govern the assessment of the case, rather than its merits and the strength of its evidence. Judges and decision-makers spend their professional lives assessing credibility and the weight of evidence; there is no compelling justification for an automatic rule to override individual case analysis.

Even if the Secretary of State wishes to constrain her decisions in such a way, judicial independence must be preserved. Judges already have the power to assess late evidence differently without being required to do so by an arbitrary time limit. It is crucial that the decision of the Secretary of State to serve a PRN does not undermine the very purpose of the appeal process: to provide an effective and independent judicial check on executive power.

The PRN provisions give the Home Secretary the power both to expedite appeals and restrict them to one level of the immigration tribunal only, meaning no errors made by that single tribunal judge can be picked up. This includes barring them from the Court of Appeal. This restriction of appellate access is as rare as it is unjustifiable: the lateness of your claim has nothing to do with your susceptibility to judicial error. We have layers of appeal for a reason.

Finally, if someone affected by this expedited appeal process has a different appeal in progress, that appeal can also be pulled into the expedited system. This will arbitrarily subject claims which have been made on time — including in relation to EU law rights and deprivation of citizenship — to a process designed to punish late appeals.

3. Accelerated detained appeals

The Bill seeks to recreate a fast-track process for asylum appeals. This previously existed as the Detained Fast Track, which was found to be unlawful in 2015, and is now to reappear under a new name: “accelerated detained appeals”.

The criteria for inclusion in the proposed new accelerated detained appeals process are that:

the person is in detention
the case is of a description prescribed by regulations
in the opinion of the Secretary of State the appeal “would be likely to be disposed of expeditiously”
Nothing in these criteria requires any consideration of whether the appeal can be dealt with fairly if it is decided on an accelerated basis. There is no requirement to ensure that the appellant has access to competent legal advice and representation. There is no requirement to ensure that they have adequate time to secure essential evidence, such as medico-legal reports, country expert evidence, or other documentary or witness evidence. There is no requirement to provide access to an interpreter if the person does not speak sufficient English.

This clause weights the system almost entirely in favour of the Home Secretary with minimal concern for fairness to the individual.

4. Abolition of certain appeal rights

The Home Secretary already has the power to certify certain human rights claims as “clearly unfounded”, which means that they can only be appealed once a person has been removed from the UK. Clause 27 of the Bill will remove even that right of appeal.

It is not difficult to imagine that with late evidence attracting “minimal weight” under other provisions in the Bill, more cases could be declared clearly unfounded than at present, increasing the risk that a person will be deported to a country where they could be tortured or killed with no way to appeal the removal even after the fact.

5. Notice requirements for removals

Clause 45 imposes a duty on the Home Office to give people a minimum of five working days’ notice of when they are going to be removed from the UK. This is an improvement, since notice periods can currently be as little as 72 hours, and are not secured in primary legislation.

But a notice period is only useful if it allows the person to get legal advice during that window. Unlike the provisions for Priority Removal Notices (see below), there is no specific provision in the Bill for providing legal advice to those served with notice of the Home Office’s intention to remove them in five days’ time. Without this, the notice period in and of itself does nothing to secure effective access to justice. Whilst a statutory minimum period may be welcome in principle, its efficacy depends on the availability of legal advice and there is currently no adequate or sustainable legal aid funding in this area.

The Bill also creates several exceptions to the right to five days’ notice, which will allow the Home Secretary to remove people effectively without notice and take away the courts’ ability to supervise the use of removal powers.

The Joint Committee on Human Rights adds that:

the power of the Secretary of State to remove a person without further notice being given where a removal has previously failed must not be used in cases where a removal has failed for legitimate reasons or where the claimant’s right to access justice requires him or her to have additional notice.

We agree.

6. Insufficient legal aid

The Bill provides for seven hours of legal aid for people served with a Priority Removal Notice to receive advice on their immigration status and removal. Whilst additional legal aid is welcome, this level of provision is not adequate given the complexity of the current immigration system, much less a system with reduced appeal rights, expedited processes, and greater powers to the Home Secretary.

There is a strong case for all of immigration law to be brought back into scope for legal aid. The Westminster Commission on the sustainability of legal aid has recommended early advice in all immigration cases be immediately brought back in scope pending a more in-depth review. At the very least, the Bill should be amended to provide legal aid to people who are served with a five-day notice of removal under clause 45. (This could be done simply by inserting “or notice of removal directions” after “priority removal notice” throughout Clause 24.)

Conclusion

This Bill will entrench existing problems: people with a legitimate basis to stay in the UK – and genuine grounds to fear removal – can be removed without effective access to justice. Making it legally easier to remove people from the UK in principle does nothing to make the system any more efficient in practice. Greater effort should be made to increase the quality and accuracy of Home Office decision-making in the first place.

January 7, 2022

Employer-sponsored immigration in United Kingdom

Employer sponsorship

i Recent history

Over the past half century, a variety of routes became available to those who wished to enter the UK for working purposes, or to establish or join a commercial enterprise. In February 2005, the then Prime Minister Tony Blair announced that the government wished to dramatically alter the immigration landscape by sweeping away many of the various employment-based immigration routes, reducing them to five categories or tiers. Persons who fell into any of the five tiers would have their applications determined by an objective PBS linked to specified attributes such as salary, academic qualifications and skill levels. This structure was intended to remove any element of discretion concerning who was, and who was not, permitted to enter the UK for work purposes.

This dramatic change was coupled with an intention to make employers themselves responsible for assigning work approvals (to be known as certificates of sponsorship), based upon the objective application of the number of points achieved by a particular overseas migrant. For compliance checks to be more easily carried out by the Home Office, any employer wishing to employ overseas migrants pursuant to certificates of sponsorship is required to hold a sponsor’s licence permitting it to do so. A complex series of passwords and user IDs are provided to each employer sponsor, and all relevant information about an overseas migrant is held in a central government computer bank called the sponsor management system.

In view of the radical nature of these changes, they took over three years to be implemented. By November 2008, the PBS with its five tiers had been rolled out and since then, the most radical changes to the employment categories of the UK immigration process have been operational.

In February 2020, the government announced its plans for a new UK immigration PBS to be introduced at the end of the Brexit transition period. The new PBS was open to applications from 1 December 2020 and came into force on 1 January 2021. The purpose of the new framework is to ensure that the country remains open for business, attracting the skills and attributes needed by key sectors of the economy and regions of the country, while at the same time reducing overall migration numbers and boosting the skills and opportunities of local workers. New categories largely based on the previous tiered system are now in operation, with further reforms expected at a later date in 2021.

Perhaps the most politically charged part of the new system is that there is no route for ‘low-skilled’ workers, even on a temporary or transitional basis. Instead, the government argues that there will be sufficient labour in the UK from among the 3.2 million people who have already applied to remain under the EU settlement scheme, as well as non-EU citizens who come as dependants of skilled migrants.

ii PBS – the regime

From January 2021, the five-tiered PBS has been replaced by a PBS with standalone categories that largely resemble their predecessors. Although some employment routes do not fall within the PBS, the vast majority do.

The PBS system includes routes for investors, entrepreneurs, those with ‘exceptional talent’ and graduate entrepreneurs (the entrepreneur and graduate entrepreneur routes are now closed to new applicants, and the exceptional talent route closed on 20 February 2020).

The skilled worker and intra-company categories are applicable to highly skilled employees performing graduate level roles, divided into subcategories of intra-company transfers (ICTs), intra-company graduate trainees, new recruits and the highly paid.

The PBS additionally includes routes for students and temporary work, which further incorporate myriad different categories, including those permitted to come to the UK under youth mobility schemes (primarily replacing the old working holidaymaker route available to young Commonwealth citizens), government-approved exchanges, those wishing to undertake internships and those of high ability in the arts, sports and entertainment sectors.

In any of the above categories, only those who secure the requisite number of points are eligible to seek entry to the UK for the purposes of employment or study. Of the employment-based routes, the following are the most prevalent and the most widely used by UK companies who need to employ migrant labour.

iii Employment categories
These applications are sponsored by employers who either wish to transfer their overseas employees to the UK or to hire a new recruit. This category is divided into two primary types: skilled worker for new hires and intra-company for overseas employees of a UK business. These categories are themselves subdivided as follows.

ICT
The intra-company category is nearly identical to the Tier 2 (ICT) category that it replaced. The category supports inward investment and trade by allowing multinational employers to transfer key company personnel from overseas to their UK branch.

Within the ICT category, the role must be graduate level, which will normally require the overseas migrant to be educated at least to bachelor’s degree level. An overseas migrant must earn at least £41,500 annually to be eligible for a certificate of sponsorship in this category. An intra-company migrant earning between £41,500 and £73,899 per year is initially permitted to enter the UK for up to five years. Those earning £73,900 or more are permitted to stay for a maximum of nine years.

However, ICT migrants who entered the UK in this category under the immigration rules in force after 6 April 2010 are not permitted to obtain ILR, irrespective of their new salary levels. This requirement is intended to discourage overseas migrants coming here purportedly to fill temporary labour shortages but whose real intention is to settle permanently in the country.

This restriction was further tightened in April 2011 when rules were introduced that required this category of overseas migrants to leave the UK after they had lived and worked in this category for five years (or, since January 2021, nine years for those earning in excess of £73,900 a year). The basic premise remains the same, however, as even these highly paid executives will be required to leave the UK at the end of this extended period, unless they switch to skilled worker status in the meantime. The ICT category maintains a cooling-off period, whereby a migrant is permitted to hold an ICT leave for a period of up to five years in any six-year rolling period, or up to nine years in any 10-year period for high earners.

ICT migrants are exempt from the requirement of having to establish their English language ability but are required to pay the immigration health surcharge for themselves and their dependants. Their employers must pay the immigration skills charge (introduced from April 2017) at £1,000 per year of visa validity (£364 for small company sponsors).

There is a requirement for ICT migrants to have been employed by the overseas entity of the UK sponsor for a minimum of 12 months. This requirement is waived where the individual earns in excess of £73,900 per annum; if the employee is being transferred as a graduate trainee, the requirement is a minimum of three months’ employment.

Notably, while the regulated qualifications framework (RQF) level was lowered for jobs in the skilled worker category, the ICT category still requires that roles are at RQF6 or above (graduate level).

Intra-company graduate trainee
This category is for graduate trainees within, usually, a multinational company, who have been employed abroad for at least three months and who are being transferred to the UK parent, branch or subsidiary of the same organisation as a part of a structured graduate training programme. The programme must define the progression towards a managerial or specialist role and will require the UK employer to provide a detailed training programme that meets the requirements of this subcategory.

The role must also be graduate level, and the maximum period of stay is 12 months.

Skilled worker
The skilled worker category is the main route for sponsorship for migrants to be employed in the UK. It replaces the previous Tier 2 (general) category with several significant amendments. There has been a suspension on the cap of the number of migrants who can come to the UK, and the resident labour market test has been abolished. Further, the skills threshold was reduced from RQF6 (graduate level) to RQF3 (A level). The general salary threshold will be lowered from £30,000 to £25,600, and the new entrants’ salary rate will be 30 per cent lower than the rate for experienced workers.

Certificates of sponsorship
The route to applying for a skilled worker visa from within the UK has been widened, and migrants who are in the UK on a non-temporary visa (i.e., not a visitor visa) are eligible to apply for the scheme from in-country. This is a significant departure from the previous system, where there were very limited routes to an in-country application. An employer who wishes to hire a migrant that is already in the UK on a residence visa will be able to assign a certificate of sponsorship to that individual without Home Office approval.

Defined certificates of sponsorship

This defined category applies to all migrants wishing to take up skilled worker employment in the UK and who are applying from outside of the UK. Unlike every other certificate of sponsorship, the sponsoring employer is unable to assign a certificate of sponsorship to that individual without prior approval from the Home Office. The panel process from the previous system has been removed, and now approval can be obtained by submitting a defined certificate of sponsorship request at any time via the Home Office’s computer system. These requests are processed by the Home Office and the outcome is intended to be communicated within 24 hours.

Eligibility requirements

There are certain common themes and requirements applicable to all skilled worker and ICT migrants. In addition to securing sufficient points for salary levels and academic skills levels, with the exception of ICTs, every overseas migrant must establish English language proficiency. The salary to be paid to any skilled worker migrant must also be no less than the prevailing salary applicable to that role, as specified within the Home Office’s standard occupation classification (SOC) codes. These were revised and simplified in April 2014 and are likely to be reviewed annually.

The April 2014 revisions to the SOC codes were wide-ranging. The number of SOC codes was substantially reduced, and for most (although not all), the prevailing salary rates were increased. They were further increased in 2017, and in April 2019 the new salary rates were both increased and decreased to reflect the latest available occupational salary data for each job type. The list of shortage occupations was reduced, primarily by removing a number of healthcare professionals from the previous list, with the exception of nurses, who were reinstated to the list in early 2016. All jobs must now meet the academic qualification RQF3, which applies to A-level roles. The latest revisions to the codes took place in October 2019, when a significant number of jobs were added to the shortage occupation list, in particular in the healthcare sector, following a review by the Migration Advisory Committee.

Overseas migrants must satisfy the Home Office that, for a minimum period of 28 days prior to applying for their visas, they have access to minimum cash amounts (known as maintenance) held by them in a regulated banking institution. In the case of certificate of sponsorship holders, the minimum sum is £1,270. If the applicant has a dependant partner this figure increases by £285, and then £315 for the first dependant child (under 18 years old) and £200 for any other dependant child. In the case of A-rated sponsors (i.e., employers), the relevant maintenance levels for both the employee and dependants can be ‘guaranteed’ by that employer, the effect of which is that the overseas migrant does not personally have to provide evidence of minimum cash savings. B-rated sponsors, however, are not permitted to give such a guarantee, and any overseas migrant wishing to be employed by a B-rated sponsor must evidence the minimum cash savings amounts. Employers of skilled worker migrants are no longer required to write a separate letter to confirm that they will guarantee maintenance for those dependants, in circumstances where the dependant is applying for his or her visa at the same time as the primary applicant. Further, where an applicant (either a main applicant or his or her PBS dependant applying at a different time) has been living in the UK for 12 months, he or she is not required to show maintenance.

The resident labour market test was removed in the PBS, although the employer must still be able to demonstrate that the job position is a genuine vacancy. The job must exist, be genuinely at the appropriate skill and salary level, and not have been created for immigration purposes. Recruiting in a particular way has been indicated as only one of the many factors that may be taken into account by the Home Office. Other considerations can include the job description, whether the sponsor credibly could have a need for that job and the sponsor’s history of compliance with the immigration system.

To qualify for a skilled worker certificate of sponsorship, migrants will be required to score 70 points overall across different categories, including a job offer with an approved sponsor at an appropriate skill level, English language proficiency and salary level. Fifty of those points must be earned by meeting mandatory criteria for the application. Migrants can obtain these mandatory points by having an offer of a job by an approved sponsor, a job offer at an appropriate skill level and English language skills at an intermediate level. Migrants must then obtain a further 20 ‘tradeable’ points through a combination of points for their salary, a job in a shortage occupation or a relevant PhD, totalling 70 points for the application. Points awarded for salary are tradeable on a sliding scale, so that individuals with a salary of £23,040 will still be able to earn points for salary. The job must also meet the ‘going rate’ requirement for the occupation.

Individuals earning £20,480 or more may still be eligible under the scheme through the acquisition of points in other areas, such as working in a sector where there is a skills shortage or having a PhD in a subject relevant to the job. The Migration Advisory Committee has been commissioned to produce a shortage occupation list covering all jobs encompassed by the skilled worker route and to keep the list under regular review. The jobs that meet this requirement are all set out within the SOC codes set out in appendix skilled occupations of the immigration rules. Jobs in the shortage occupation category may be paid 80 per cent of the going rate for the occupation code, provided the salary is a minimum of £20,480 per year.

New entrants to the UK labour market will continue to benefit from a reduced salary threshold for three years under the new system. New entrant skilled workers include those switching from the student or graduate route to the skilled worker route, those under the age of 26, as well as those working towards recognised professional qualifications or moving directly into postdoctoral positions.

Set out below is the current points table applicable to overseas migrants hoping to qualify for a skilled worker job. In this regard, it should be noted that the only salary levels permitted to be taken into account are those that are guaranteed to be paid, and not those that vary, such as discretionary or performance-based bonuses.

Characteristics Tradeable Points
Offer of job by approved sponsor No 20
Job at appropriate skill level No 20
Speaks English at required level No 10
Salary of £20,480 (minimum) to £23,039 Yes 0
Salary of £23,040 to £25,999 Yes 10
Salary of £25,600 or above Yes 20
Job in a shortage occupation (as designated by the MAC) Yes 20
Education qualification: PhD in subject relevant to the job Yes 10
Education qualification: PhD in a science, technology, engineering or mathematics subject relevant to the job Yes 20
The points requirements for intra-company migrants are simplified, and no points are tradeable. Set out below is the current points table applicable to overseas migrants hoping to qualify for an intra-company job. As there is no English language requirement in the intra-company category, a migrant is only required to score a total of 60 points.

Points requirements Points
Offer of job by approved sponsor 20
Job at appropriate skill level 20
Salary at required level 20

Applicants in these categories are required to pay the immigration health surcharge. Additionally, those prospective migrants who are coming from certain countries where tuberculosis continues to be a major health risk (such as China, Hong Kong, India, the Philippines, Russia and Sri Lanka) are required to obtain from an approved medical practitioner a certificate to confirm that they are not suffering from tuberculosis.

Unlike ICT migrants, overseas migrants employed in the UK with the benefit of a skilled worker certificate of sponsorship (whether defined or undefined) are permitted to apply for ILR once they have lived in the UK and worked in a skilled worker category for five years (time spent in the Tier 2 (general) category can be combined with time under the skilled worker category to meet the five-year eligibility period). They will, however, be required to establish at that time that they still meet all the criteria applicable for continuing approval of their skilled worker employment, including confirmation from their employer that they are still required for the job. This requirement was introduced on 6 April 2011.

In addition, from April 2016, all Tier 2 (general) – now skilled worker – ILR applicants must meet a minimum pay threshold as well as the prevailing wage for their particular job. This amount was lowered under the new PBS, and for applications submitted from January 2021 the minimum threshold to be met is £25,600 per annum. This threshold is a decrease of nearly £10,000 from the previous system.

The maximum permitted period of stay under the previous system for Tier 2 (general) has been removed, and a skilled worker migrant can extend his or her permission to remain in the UK indefinitely if he or she does not apply for indefinite leave to remain. Skilled worker migrants can obtain a maximum initial period of leave of five years.

The cooling-off period under the old system has also been largely abolished. There is no cooling-off period for skilled worker migrants, although the restrictions remain for ICT migrants in a different configuration.

A final point on procedural matters is that if skilled worker migrants are in the UK and fail to apply to renew their stay before their visa expires, there is a 14-day grace period given to them so that there will be no adverse effect on their immigration history provided that they do apply to renew their status (in country) within that 14-day period, with persuasive reasons for the delay.

When applying for ILR, overseas migrants are permitted to spend as many as 180 days in each year out of the UK during the prescribed five-year period without continuity of stay being broken. The effect of this is that, provided that the overseas migrant does not spend more than 900 days out of the UK during the five years leading to eligibility for ILR, and provided that these absences do not exceed 180 days in a year and are all work-related, approved annual leave or for compassionate purposes, ILR can be approved. This requirement was first introduced in December 2012 to correct inconsistencies in approach by Home Office caseworkers when considering ILR applications and whether discretion on length of absences should be exercised. For periods of leave granted after January 2018 that will contribute to the qualifying period for ILR, the 180-day absence limit is calculated on a rolling basis and the absences will be taken from within any 12-month period rather than a given year. Leave issued before this date will still be calculated in consecutive 12-month periods. The same also applies to PBS dependants if applying after January 2018.

These changes are part of the government’s continuing wish to separate the historical link between temporary employment and permanent residence. Whether any additional changes in this regard will occur is subject to ongoing consultation.

From April 2017, the requirement to provide a criminal record certificate was extended to include Tier 2 (general) entry clearance applicants – now skilled workers – coming to work in the education, health and social care sectors, partners of the main applicants as above and partners applying overseas to join an existing skilled worker migrant working in one of those sectors. Certificates must be provided for any country in which the applicant has resided for 12 months or more (whether continuously or in aggregate) in the past 10 years prior to their application, while aged 18 or over. Certificates from the applicant’s most recent country of residence will normally only be considered valid if they have been issued no earlier than six months before the application date. Certificates from countries prior to the applicant’s most recent country of residence must normally cover the entire period of residency (up to 10 years prior to the application date) but will otherwise be considered valid indefinitely.

At a later stage, the government also intends to create a ‘broader unsponsored route’ within the PBS to run alongside the employer-led system. Qualifying individuals will be able to come to the UK without a job offer. The government plans suggest that a cautious approach is being taken in the development of this route, presumably to maintain the integrity of their policy to take back control of immigration numbers. The plans suggest that the route will be capped and carefully monitored during an implementation phase. Example characteristics for which points could be awarded include academic qualifications, age and relevant work experience.

Health and care worker

A new category specifically for skilled migrants working in the healthcare sector was introduced in August 2020, assuredly in response to the contributions of healthcare workers in the UK during the covid-19 pandemic. The health and care visa currently exists within the purview of the skilled worker visa. It allows medical professionals to come to or stay in the UK to do an eligible job with the NHS or an NHS supplier, or in adult social care. A migrant intending to apply under this category must meet the requirements of the skilled worker visa and must additionally be a qualified doctor, nurse, health professional or adult social care professional working in an eligible health or social care job.

Migrants and their dependants in the health and care worker category pay lower application fees and are exempt from paying the immigration health surcharge. The application process for this category is also intended to be streamlined, with a dedicated team handling applications and providing decisions more quickly than in other working categories.

T5 temporary worker

The old Tier 5 route has remained intact and is now called T5 temporary workers. This route is divided into several categories, and its purpose is to enable individuals to enter the UK for short periods to take up temporary work before returning to their home country. No immigration cap has been imposed upon these routes; in most instances, it would be futile to do so, in view of the temporary nature of the roles that overseas migrants will fill. The categories are as follows.

Youth mobility scheme

This largely mirrors the (now defunct) working holidaymaker scheme, which permitted young Commonwealth citizens to enter the UK for up to two years for the purposes of temporary employment and taking an extended holiday. The requirements under the new scheme remain much the same, as it enables applicants between the ages of 18 to 30 from certain countries to enter and work in the UK for two years. However, the requirement that such applicants also ‘take a holiday’ no longer applies. The countries that benefit from this scheme are currently limited to Australia, Canada, Hong Kong, Japan, Monaco, New Zealand, South Korea, San Marino and Taiwan, along with British overseas citizens, British overseas territories citizens and British nationals (overseas). The scheme was extended to include San Marino from January 2021 following the end of free movement.

The number of applicants from each country is limited as follows: Australia, 30,000; New Zealand, 13,000; Canada, 5,000; and the remaining countries are allocated 1,000 places each. The selection process in Taiwan is a lottery-based scheme split into two ballots in January and July each year. There is no allocation restriction for British citizens or nationals mentioned above.

Temporary worker

This category was created to enable overseas migrants to take up temporary employment, such as an internship or a graduate training programme. Applicants need to be issued with a certificate of sponsorship by an ‘overarching body’ that has previously been approved by the Home Office. There are currently approximately 50 registered overarching bodies permitted to assign certificates of sponsorship to suitably qualified applicants, all of which must be independent from the employers with whom the overseas migrants will work or undertake their internship programme.

Government authorised exchanges (GAEs) also fall into this broad category. However, the maximum period of stay permitted to applicants coming for a work experience programme under Tier 5 (GAE) is 12 months. Work experience programmes that fall within this category will be work experience and internships run by the Bar Council, BUNAC, the Commonwealth Exchange Programme, Fulbright UK/US Teacher Exchange Programme and Tier 5 intern schemes generally.

However, when applicants are seeking entry for GAE research and training programmes they will continue to be permitted to stay in the country for up to 24 months. Programmes that benefit from the longer period of stay include Chatham House overseas visiting fellowships, Commonwealth scholarship and fellowship plans, sponsored researchers, UK–India education and research initiatives and the US–UK Education Commission (also known as the US–UK Fulbright Commission).

Under the PBS from January 2021, there are new categories for religious workers and charity workers to enter the UK for a short-term period.

Creative and sporting routes

The routes for creative and sporting individuals have been separated in the new PBS, although the requirements remain similar for each category. This enables artists, entertainers or sportspeople to enter the UK to perform at a particular event, which may not necessarily be a one-off situation, as it also includes actors taking part in theatrical productions that may last for a considerable period. The visa can be issued for a period of up to 12 months. In the case of sportspeople, they must be internationally established at the highest level and their presence in the UK must be regarded as making a significant contribution to a sports event or series of events. In each instance, the employer, or even a management company, agency or promoter, can assign the certificate of sponsorship. Where the artist or sportsperson intends to stay in the UK for less than three months, that individual may be exempted from obtaining a visa or entry certificate before coming here, unless that individual is a visa national (i.e., the citizen of a country for which a visa must be secured before entry to the UK is permitted for any purpose). Sportspeople seeking to come to the UK on a temporary basis – 12 months or less – are not subject to an English language requirement.

iv Sponsor obligations
Since the introduction of the Immigration, Asylum and Nationality Act 2006, employers have been subject to an increasing range of obligations, including the requirement to ensure that an overseas migrant has correct work authorisation (through the legal right to work checks), in addition to compliance with numerous sponsorship duties. Along with the 2006 Act, civil penalties were introduced for employers, with fines of up to £20,000 for each unlawfully employed worker, and unlimited fines and up to two years’ imprisonment for knowingly employing illegal workers.

Employers are required to check eligibility to work in the UK for each new overseas migrant before employment commences, and for those with limited entitlement to remain in this country (i.e., everyone except for UK citizens, EEA citizens and those who are settled here), annual checks were required on their continuing ability to work here. EEA citizens will join this group of migrants on 30 June 2021: after this date, employers will need to check EEA citizens’ eligibility to work in the UK, as they must with any other overseas migrants. However, the right to work checks have been relaxed in that, once a migrant has complied with the requirements to establish a right to work in the UK, there is no longer any requirement to check his or her immigration status annually, and this can be deferred to either his or her visa expiry date, or the date that his or her employment comes to an end, if earlier. That will reduce the regulatory burden on employers, particularly large employers, who find it difficult to deal with annual checks for a substantial and mobile workforce.

Once a UK employer has been issued with a sponsor’s licence, the Home Office has the power to suspend, downgrade or even revoke the licence. This could have catastrophic consequences for any overseas migrant working for that employer with a sponsored work visa by the employer; for example, if the sponsor’s licence is revoked with immediate effect, that employer is unable to continue lawfully employing that individual. The employee will then have his or her leave curtailed to 60 days, during which period he or she must seek alternative employment with a different sponsor, failing which he or she will be required to leave the country, together with any family members (and may be subject to the cooling-off period).

The Home Office has not identified all the circumstances in which it will suspend, withdraw or downgrade a sponsor’s licence, but when considering appropriate action, it will consider the seriousness of the sponsor’s failures; whether the sponsor’s acts or omissions are part of a consistent or sustained record of non-compliance; and whether the sponsor has taken any remedial action to minimise those failures. Suspension of a sponsor’s licence will prevent that employer from assigning any new certificates of sponsorship, and if the employer attempts to assign a new certificate of sponsorship, it is likely that its sponsor’s licence will be revoked.

The Home Office will revoke a sponsor’s licence for a variety of reasons, including where it stops trading for any reason (including insolvency); where it has been issued with a civil penalty for employing one or more illegal workers, and the fine imposed for at least one of those workers is the maximum amount; or where a civil penalty has been imposed and has not been paid within 28 days.

A sponsor’s licence will normally be revoked in circumstances where the employer is convicted for any offence introduced by a variety of immigration statutes, including the Immigration Act 1971, the Immigration Act 1988, the Nationality Immigration and Asylum Act 2002 and the Immigration, Asylum and Nationality Act 2006. Licences will also be revoked for any offence relating to trafficking for sexual exploitation or any other offence that shows that a sponsor poses a risk to immigration control.

v Non-PBS employment categories
Very few of the previous employment-based immigration routes have survived the introduction of the PBS. However, the most important that have done so are as follows.

Domestic worker in a private household
Although this route for entry into the UK has been in existence for many years, it was only in September 2002 that it formally became part of the UK’s immigration rules. Providing that the appropriate criteria were met, overseas domestic workers in a private household could accompany their employer to the UK for an initial period of one year, which would then be extended annually (if the criteria were still met) until they became eligible for ILR after five years’ continuous employment in this category. With effect from 6 April 2012, the maximum permitted stay for such workers is six months for new applicants, and only then in circumstances where the overseas employer is coming to the UK as a visitor. No extensions beyond six months are now permitted, and this route to settlement has been extinguished. Prior to April 2012, a domestic worker in a private household could bring his or her dependants to the UK, who themselves were permitted to take up employment. Under the new regime, domestic workers are no longer permitted to be joined by their dependants.

Commonwealth citizens with UK ancestry

This is the final remaining immigration benefit reserved only for Commonwealth citizens, and it remains in place because of much diplomatic lobbying by, primarily, the governments of Australia, Canada and New Zealand.

The requirements that the applicant must meet are that he or she is a Commonwealth citizen, has at least one UK-born grandparent and intends either to take employment or seek employment upon arrival in the UK.

This route is not available to those who have no wish to work but merely have a UK-born grandparent. The applicant must either have a job, or must intend to find one, before the entry certificate will be issued.

The application is submitted to a British consulate in the applicant’s home country or country of residence and, if approved, the visa will be valid for five years. Upon the expiry of that five-year period, the applicant and immediate family members (spouse and children under 18 years of age) are eligible for ILR, provided they are either working at the time of application or can evidence attempts to find work in the previous five years. In November 2019, the Home Office issued updated policy guidance for caseworkers confirming that applicants working as unpaid volunteers (or intending to be) will satisfy the working criteria of the application.

Representatives of overseas businesses

The purpose of this category is to enable a senior executive of an overseas company or firm to come to the UK to establish a wholly owned subsidiary or register a UK branch for that overseas parent company. There must be no existing branch, subsidiary or other representative in the UK, although if the UK entity merely has a legal existence but does not employ staff or transact any commercial activities, the sole representative route may still be available.

The prospective representative (not the company) must apply for entry clearance in his or her country of normal residence, and supporting material will include:

a full description of the parent company’s activities;
a UK job description and proposed UK salary levels;
evidence that the sole representative is an employee of the parent company outside the UK and has full authority to take operational decisions on its behalf in the UK; and
evidence that the sole representative is not a majority shareholder in the parent company.
If the visa is granted, it will be approved for two years initially, during which period the representative is expected to establish a UK commercial presence for the overseas company and to work full time in its interests. Providing these criteria are met, this status can be extended for three further years, following which the sole representative (and his or her immediate family) will be eligible to apply for ILR.

This route is also open to employees of an overseas newspaper, news agency or broadcasting organisation being posted on a long-term assignment as a representative of their overseas employer, where there is no requirement to take operational decisions. Those qualifying under the subcategory for employees of overseas news or media organisations will also be granted two years’ leave, during which they may only work for the employer in question. There is also an English language requirement for media employees.

Business visitors
The visitor rules have been simplified, and new rules took effect from 1 December 2020. There are now four types of visitor visa: standard visitor, marriage and civil partnership visitor, permitted paid engagement visitor and transit visitor.

Business visitors can come to the UK under the standard visitor category. They can visit the UK for different business reasons such as attending meetings, conferences, trade fairs or negotiating contracts. Business visitors must remember that there is a distinction between working in the UK and entering the UK for business purposes. The former requires express permission to work in the UK, whereas the latter does not.

‘Permitted paid engagements’ visitor category
The UK’s immigration rules have only rarely permitted short-term working activities, and never where individuals receive remuneration or a fee for their services.

However, this visitor category was established to deal with prearranged specific activities where the overseas visitor is permitted to enter the country as a visitor and to receive a fee. This route is restricted to those coming for one month or less, and no formal sponsorship from any UK employer or institution is required. Examples of permitted activities for a visitor in this category of stay are:

giving a lecture, examining students and participating in or chairing selection panels;
overseas-designated air pilot examiners assessing UK pilots to ensure they meet the national air regulatory requirements of those countries;
providing advocacy in a particular area of law (as a qualified lawyer) in a court or in a tribunal hearing, arbitration or other form of alternative dispute resolution in the UK;
professional artists, entertainers or sportspersons carrying out an activity relating to their main profession (e.g., artists exhibiting and selling their work);
authors engaged in book signings;
entertainers giving a one-off performance or short series of performances; and
sportspersons providing, for example, guest media commentaries in their chosen field.
A visa will be required for visa nationals, although not for any other individual who would not normally require a visa to secure entry to the UK. However, non-visa nationals must still be able to satisfy an immigration officer at a UK port of entry that their activities clearly fall within the parameters of the new visitor category.

National Health Service surcharge
A major increase in the cost of recruiting overseas (now including EEA nationals) labour was introduced in October 2020. The immigration health surcharge (or National Health Service (NHS) surcharge as it has become known) was initially set at £200 a year for temporary migrants (with a primary applicant or his or her dependants, or both) and £150 a year for students. This was increased on 8 January 2019 to £400 and £300 per year, respectively, and little over a year later it was increased to £624 and £470 per year, respectively. Dependant children are no longer charged the same amount as a primary applicant, and they are charged £470 per year. The fees must be paid for the entire period of leave being requested at the time that these applications are being applied for: duplicate payments for the same period – for example when an applicant changes his or her immigration route part-way through his or her current visa – are refunded.

The NHS surcharge is paid by all overseas nationals who apply to come to the UK either to work, study or join family for a limited period of more than six months and will also be paid by the same individuals who are already in the UK and apply to extend their stay. This includes Australians and New Zealanders, who were previously exempt.

The exemptions to the requirement to pay the surcharge are as follows:

tourists who enter the UK on a tourist visa will not pay the surcharge although they will remain directly chargeable for hospital treatment should they need to utilise the services of the NHS while in the UK. However, the NHS will charge each such tourist 150 per cent of the cost of any treatment, and therefore private travel and health insurance should be taken out;
asylum applicants;
victims of slavery or human trafficking and their dependants;
dependants of a member of the armed forces;
those applying for the EU settlement scheme;
those eligible for a frontier worker permit and who have an S1 certificate;
those applying for ILR;
those applying for a visa to the Isle of Man or Channel Islands; and
health and care workers who are eligible for a health and care worker visa and their dependants.
Although there is a certain logic to imposing this surcharge, it is an additional burden imposed on large employers (in particular) who operate in the global marketplace and who recruit hundreds, if not thousands, of overseas migrants. The burden caused by this surcharge is further increased due to the removal of EEA nationals from the UK labour market following the end of free movement. This surcharge can be paid by the employee or the employer. There is no requirement for the employer to pay this on behalf of a sponsored employee.

Additionally, applicants for visas who will stay in the UK for more than six months must secure tuberculosis certificates if applying from certain countries where tuberculosis is an ongoing health risk.

Immigration skills charge and certificates of sponsorship
An additional charge is now payable by employers who have employed migrant workers in skilled roles under the skilled worker or ICT sponsorship scheme on or after April 2017. The skills charge is set at £1,000 per employee per year, and at a reduced rate of £364 for small or charitable organisations.

Companies that have fewer than 50 employees, or turnover of less than £6.5 million and where their balance sheet is no more than £3.26 million or they are charitable organisations, will pay a lower skills charge of £364.

The skills charge was announced alongside a number of changes to the immigration rules following the MAC’s report of January 2016 advising the government on how to ‘significantly reduce the level of economic migration from outside the EU’. It is notable that this pre-dated the June 2016 referendum.

The skills charge will not apply to a sponsor of an overseas national who was sponsored in Tier 2 before 6 April 2017. Furthermore, it will only be imposed on main applicants, so it will not affect dependent family members. In practice, the skills charge increases the cost of a five-year skilled worker or ICT sponsorship by £5,000. Essentially, it is designed to reduce demand on the scheme and result in additional opportunities for resident workers.

The skills charge is paid at the time of assigning certificates of sponsorship (COS) to overseas migrants by the employer, and the COS fee is currently £199 for all overseas migrants except for nationals of Austria, Belgium, Croatia, Cyprus, the Czech Republic, Denmark, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Luxembourg, Malta, the Netherlands, North Macedonia, Norway, Poland, Portugal, Slovakia, Spain, Sweden and Turkey. These countries are exempt from the COS fee. The COS and skills charge must be paid by the employer, and the employer cannot request or allow the employee to pay for these fees in any way.

Right to rent
With effect from February 2016, private landlords are required, pursuant to the Immigration Act 2014 and the ‘compliant environment’ policy (formerly ‘hostile environment’), to conduct immigration status checks on their tenants. Financial penalties of up to £3,000 can be imposed on landlords who fail to undertake immigration checks or who rent property to a person whose immigration status (or lack of one) means that he or she does not have a right to rent in the UK.

Immigration status checks must be conducted by either the landlord or lettings agent before entering into a residential tenancy agreement with any adult who is to occupy the premises as their main or only home. In the first six months of operation, the Home Office Landlords Checking Service right-to-rent aid was used over 11,000 times and the helpline took over 800 calls to support landlords, agents and tenants in implementing the scheme.

The right-to-rent provisions were strengthened by the Immigration Act 2016, which introduced mechanisms for landlords to evict illegal migrant tenants more easily and, in some circumstances, without a court order. In practice, landlords will request a notice of letting to a disqualified person from the Home Office, which, if issued, confirms the tenant is disqualified from renting in the UK as a result of his or her immigration status. On receipt of this, the landlord will be expected to take action to ensure that the illegal migrant leaves the property.

However, on 1 March 2019, a High Court ruling stated that the right-to-rent policy was certain to cause discrimination on the grounds of race and nationality.3 The Court made a declaration of incompatibility with human rights. This is supported by various reports, one being from research undertaken by the Residential Landlords Association in 2018 that confirmed 42 per cent of landlords, as a result of the policy, were less likely to agree to a tenancy with a person who did not hold a British passport. The government appealed this ruling in January 2020 at the Court of Appeal and, on 21 April 2020 the Court of Appeal ruled that the checks are not unlawful under the Human Rights Act, reversing the decision of the High Court.

Immigration checks on bank accounts
Wider enforcement measures with respect to banks and building societies have made it even more problematic for illegal migrants to live and work in the UK. Measures introduced by the Immigration Act 2016 provided the Home Office with an escalating range of options, including where a current account holder is confirmed to be unlawfully present in the UK. This provision was implemented in January 2018 and placed a burden on banks and building societies to check the immigration status of personal bank account holders in the UK and inform the Home Office where a legal right of residence is not found. The Home Office will then conduct its own checks and may apply to the courts for an order instructing the bank or building society to freeze the individual’s accounts. This further enables the Home Office to prosecute individuals for the criminal offence of working illegally and recovering wages as proceeds of crime.

The Home Office states that (at this stage) only details of illegal migrants who are liable for removal or deportation from the UK or who have absconded from immigration control will be checked (against a list provided by anti-fraud organisation Cifas). However, following the Windrush scandal, immigration checks on bank accounts were suspended in May 2018 and, at the time of writing, remain so.

Right to work checks
Since 2008, employers have been required to complete legal right-to-work checks on all employees reporting for work on or before their start date to prevent illegal working. This involves a manual check of an employee’s identity document and evidence of entitlement to work in the UK, such as with a British or EU passport or a visa that permits work. Carrying out a compliant right-to-work check (with appropriate document retention) provides the employer with a statutory excuse, which can be used as either a partial or complete defence, if the employee has been working illegally. Failure to carry out the required right-to-work check can result in the employer being subject to significant financial penalties or imprisonment.

From 28 January 2019, employers have been able to conduct the legal right to work checks online. An online check is undertaken via an employer’s online profile of the official government website, and the Home Office will keep records of checks undertaken. Completion of a correct online right to work check, with appropriate record-keeping, provides the employer with a statutory excuse.

The online right to work check must be kept electronically or in hard copy on the personnel file (as per previous requirements) and must be kept for the duration of the migrant’s employment, plus an additional two years from that date.

As part of covid-19 measures, as of March 2020, some temporary changes have been made to the current guidance that now allow employers to conduct checks online via video calls. However, these changes will cease to be in place once covid-19 measures cease to exist, and employers will be required to carry out retrospective physical checks.

Top