Brexit round-up: Huge residency application backlog at Home Office
Brexit round-up: residency application backlog at Home Office has rapidly increased in last 6 months
2 Dec 16
The issue of what the legal status of European citizens residing in the UK will be after Brexit has been a contentious issue since the referendum result was announced.
Kier Stramer, shadow Brexit secretary, said this week that the government should pass legislation to secure the rights of up to 3 million EU citizens currently living in the UK.
Here’s a round-up on the top Brexit-related stories this week.
Home office residency backlog
The home office’s official backlog of EU citizens applying for UK residency has tripled since the summer of 2015.
The number of outstanding applications “currently in progress” was 37,618 in June 2015but had risen to around 100,000 in July 2016.
Prevention of illegal working under the Immigration Act 2016 – changes to the law from 1 December 2016
Businesses employing staff without the right to work face civil penalties of up to £20,000 per illegal employee. These can be imposed without proof of illegal working (or the employer’s awareness of it) – it is then up to the employer to demonstrate that the employee did have the right to work or that it carried out prescribed right to work checks to obtain a ‘statutory excuse’. Guilty until proven innocent, one might say. This civil penalty system has been in place since 29 February 2008 and supplements the criminal regime under which there have historically been very few prosecutions.
Since the introduction of the Immigration Act 2016 earlier this year, a range of measures have been implemented indicating the Government’s continuing drive to get tough on businesses that employ staff without the right to work, the most relevant of which are as follows:
From 12 July 2016, the Act extended the existing criminal offense to cover an employer who has ‘reasonable cause to believe’ it is employing someone illegally (as opposed to its ‘knowingly’ doing so). Employers found guilty of this offense could receive an unlimited fine and/or a custodial sentence of up to 5 years for a director, manager or company secretary found to have consented to or connived in the offense. It is clear that the law has been changed to increase the chances of successful prosecution but we do not yet know how regularly or strictly it will be enforced. For example, will it apply to an employer who was personally unaware that his employee did not have the right to work but whose own records show the expiry of that employee’s right to work (or should do, had proper right to work checks been carried out)? Or will the sanction be reserved for the more serious cases of repeated illegal working where previous civil penalties have had no deterrent effect and the employer indicates a flagrant disregard for carrying out right to work checks? For most otherwise law-abiding employers, the imposition of a civil penalty alone is likely to be a sufficient shock to ensure that they put proper systems in place to prevent future breaches but it is too early to say where the Home Office will draw the line.
From 1 December 2016, the Home Office also has the power to close premises for up to 48 hours where a Chief Immigration Officer has reasonable grounds to believe that a business is employing someone without the right to work in certain circumstances, including where the employer has already been issued with one or more civil penalties in the previous three years. The initial closure period can be followed by special compliance requirements as directed by the courts including continued closure for a defined longer period. In the limited guidance provided to date, the Home Office has said that the provisions are intended to ‘deal with those employers who continue to flout the law by employing illegal workers and evading sanctions’. Unlike a criminal prosecution, however, closure action does not require the Home Office to demonstrate the employer’s awareness of the illegal working. The closure of premises, even for a short period could have a far more devastating commercial and reputational impact for most employers than a civil penalty.
Aside from these new provisions, businesses which employ and sponsor skilled staff from outside the EEA under a Tier 2 sponsor licence should also bear in mind that they are at risk of that licence being suspended, downgraded or revoked should they be issued with a civil penalty. Revocation of the sponsor licence would mean having to terminate the employment of all Tier 2 staff in the business and being prevented from sponsoring anyone else for at least a year. If an employee’s sponsorship is terminated, his leave to remain in the UK will be curtailed to 60 days during which he must find another willing sponsor to take him on (usually subject to first completing a prescribed resident labour market test) or leave the UK.
Blog Employment Law Worldview
United Kingdom December 1 2016
Changes to the Immigration Rules.
Home Office
Dear colleague
Today, (November 3), the Home Office has laid before Parliament a package of changes to the Immigration Rules.
Tier 2
Earlier this year we announced reforms to the route for skilled workers, following recommendations made by the Migration Advisory Committee’s review. The main changes in the rules being published today are:
• Increasing the Tier 2 (General) salary threshold for experienced workers to £25,000, with some exemptions.
• Increasing the Tier 2 (Intra-Company Transfer) salary threshold for short term staff to £30,000.
• Reducing the Tier 2 (Intra-Company Transfer) graduate trainee salary threshold to £23,000 and increasing the number of places to 20 per company per year.
• Closing the Tier 2 (Intra Company Transfer) skills transfer sub-category.
These changes will come into effect for all certificates of sponsorship assigned on or after 24 November 2016. The date from which Intra Company Transfers will be liable for the Health Surcharge will be announced in due course.
English language requirement
As announced in January this year, a new English language requirement at level A2 of the Common European Framework of Reference for Languages is being introduced for non-EEA partners and parents. This affects those applying to extend their stay after 2.5 years in the UK on a 5-year route to settlement under Appendix FM (Family Members) to the Immigration Rules.
The new requirement will apply to partners and parents whose current leave under the family Immigration Rules is due to expire on or after 1 May 2017.
Applicants will be able to meet the new requirement by passing a speaking and listening test at level A2 or above provided by one of the approved test providers, Trinity College London or IELTS SELT Consortium. Applicants will also be able to meet the A2 requirement on the basis that they are a national of a majority English-speaking country or the holder of a degree taught or researched in English.
Applicants will be exempt from the A2 requirement if at the date of application they are aged 65 or over; they have a disability which prevents them from meeting the requirement; or there are exceptional circumstances which prevent them from being able to meet the requirement.
The new A2 requirement will help family migrants better engage in everyday conversation and thereby participate and integrate in everyday life in the community. The new requirement will also support progression towards the B1 level English language required for settlement.
By announcing the implementation date now, the Government is providing a further 6 months’ notice of the new A2 requirement, enabling those who need to do so to improve their English from the A1 level already required to come here on a partner or parent visa.
A Q&A on the new A2 English language requirement is attached. For further information, see the Statement of Intent on www.gov.uk
Other changes
In addition to the above, we propose to make a number of minor changes, including for Tier 1 (Entrepreneur and Exceptional Talent), Tier 2 (General) applications, Tier 5 youth mobility quotas and Tier 5 maintenance funds.
For information on all the changes and implementation dates visit www.gov.uk
For questions or enquiries visit www.gov.uk/contact-ukvi If you are a premium sponsor, please contact your licence manager.
Regards
Home Office Communications
