visa changes

Whilst we still wait for the much anticipatedGovernment Whitepaper on the reforms to the UK Immigration Rules which has nodoubt been delayed due to the current Brexit debacle, the Minister of State forImmigration, Caroline Nokes did publish a writtenstatement on 06 December 2018 (which coincided with the suspension ofthe Tier 1 (Investor) visa) and gave a flavour of what changes will takeplace.  They include:

  1. Introducing the “start-up” visa, which was initially announced in June this year, and which the Government says will build upon the success of the current Tier 1 (Graduate Entrepreneur) route.  At this early stage it would appear that the UK will want to use this visa route to encourage more overseas entrepreneurial talent to set up their business in the UK i.e. not just graduates of UK universities.  The announcement also states that in addition to higher education institutions a UK business may also be able to endorse applicants under the start-up visa, though what is not clear at this stage is whether the start-up visa will replace the Tier 1 (Graduate Entrepreneur) or whether this route will run side by side; and
  • The introduction of a new “Innovator” visa and which will replace the current Tier 1 (Entrepreneur) route.  The Minister’s announcement states that this will be targeted towards experienced business people and unlike the Tier 1 (Entrepreneur) the innovator route will require an endorsement by a business sponsor who will need to assess an applicant’s business idea for innovation, viability and scalability; and
  • Tier 1 (Investor) visa was suspended suddenly without any warning but with the announcement that it had been done so because of widespread fraud and as a mechanism used for money laundering.  The investor category will see a number of reforms and it is likely that applicants will need to prove that they have held the funds that they propose to invest (minimum of £2m) for at least 2 years as opposed to 90 days and applicants will no longer be able to invest in UK government bonds but only in UK trading and active companies; and
  • The Tier 1 (Exceptional Talent) visa will be expanded to allow applications from leading architects to be endorsed by the Royal Institute of British Architects under the remit of the Arts Council England. It does appear that the Tier 1 (Exceptional Talent) visa will be a favoured category of the UK government to attract leading and emerging talent to the UK having earlier in the year expanded the route to include endorsement of leading fashion designers and doubling the number of endorsements that will be given in a year from 1000 to 2000; and
  • The Tier 5 (Religious Worker) route will be tightened to ensure that this visa category is not being used by charities and religious institutions to fill roles that should be carried out by Tier 2 (Minister of Religion) migrants.  The proposals announced in The Statement will require applicants under the Tier 5 (Religious Worker) route to have a stronger command of the English language and will not allow someone under this route to return home and immediately re-enter the UK under the Tier 2 (Minister of Religion) category but instead there will be a “cooling off period” of 12 months preventing an applicant to do so; and
  • Further announcements and clarification will be given of the Seasonal Agricultural Workers scheme which will allow non-EEA migrant workers to come and work in the UK temporarily (for up to 6 months) in the Horticultural sector

As soon as further clarification is given or indeed theWhitepaper published we will of course update you.

NB *Since writing this article the Government announced on 11 December 2018 that the Tier 1 (Investor) Visa will not be suspended but that they are committed to reform this visa category and that any suspension will be announced as part of the changes if necessary.

We are receiving a number of enquires from businesses about frequent short visits to Europe to conduct business or EU colleagues visiting the UK for the same purpose. Thus far we can provide the following information.

 With both the UK and EU committing to citizens’ rights of those EU nationals already settled in the UK and UK nationals settled in the 27 EU Member States the Withdrawal Agreement sets out that British Nationals will not require visas to travel for short stays to the 22 EU member counties that are members of the Schengen area and four Schengen- associated states. It will also apply to Romania, Bulgaria, Croatia and Cyprus. Short stays have been defined as up to 90 days in any 180-day period. This is likely to include travellers for the purpose of business visits, leisure and family visits but not for work.

There is at this stage uncertainty as to whether British travellers will need to apply for electronic travel authorisation (Etias – the EU Travel Information and Authorisation System) which is modelled on the US ESTA and is being introduced by the EU for security grounds for all countries outside the bloc, even if they are visa-exempt. However, what is clear is that the European Health Insurance Card will no longer give British citizens rights to reciprocal healthcare meaning that arrangements should be made for travel insurance.

The UK Government has also declared its intention of EU 27 Member State Citizens not requiring visas for short stay visits (likely to be 6 months as is the case currently with non-EU Nationals) for the purposes of leisure and business.

The European Commission has also said that that this may also be the position i.e. that British Nationals will not require visas for visits in the event of a no-deal.

Areas that we still require clarification include the position of non-EU colleagues that are employed in a multi-national company either in the UK or in a sister company in Europe being transferred for a period of time to work for the same Group. Currently this possible under the Vander Elst visa but this right to travel currently derives from EU law.

UK Leaving EU - BrexitBy Thalej Vasishta:

 It has been a busy and uncertain 24 hours in politics and what appears below is the text of my commentary in the media yesterday, following confirmation that Teresa May had negotiated a transition deal and was putting it to her cabinet. In the last 12 hours I have had the chance to read (quickly!) the 500-page negotiated draft Withdrawal Agreement. The document is a huge step forward in what is a difficult situation for any leader or Government in trying to please all sides of the division. The document in my view makes it clear that transition and the backstop are not intended to be a permanent solution but sets the scene for a future deal and gives some certainty to businesses, is a step towards frictionless trade and the first steps to avoid the perils of a no deal and the years of unravelling that would cause.

My expertise is UK immigration law and policy. This is what I will focus on in the remaining part of this article. When reading the Withdrawal Agreement, it is clear that negotiators had the outcome of the Brexit referendum result in mind which was primarily based on two factors. Immigration, taking back control of our borders and secondly taking back control of our laws. The document achieves this.

Deal or no deal, the Government has given certainty as to the position of EU Nationals currently residing and working in the UK; and a degree of certainty as to how future immigration law and policy will be framed.

Therefore, whilst there remains uncertainty in respect of trade, customs etc. business should however be in a better position to plan to protect their existing EU workforce and consider their strategy in terms of meeting future labour shortages once the UK leaves the EU.

EU Nationals who are already here or continue to arrive in the UK up until 31 December 2020 (end of the transition period) will be entitled to apply up until June 2021 for settled status if they have been in the UK for 5 years by the time they apply, or pre-settled status if they have been here for less than 5 years allowing them to upgrade to settled status later.

This scheme will benefit 3m EU Nationals currently in the UK but it is important that employers keep an eye on when the scheme is opened up to their EU colleagues, encourage them to apply and once the colleague receives their new digital status document to obtain a copy of this status to confirm their continued right to work in the UK. By 28 November the scheme will have opened to colleagues working in higher education institutions, NHS and other related health and social care professions and then the scheme will be open to all by April 2019.

The Home Secretary confirmed at the Conservative Party conference that after the end of the transition period free movement for European Nationals will end. It would appear that little research has been carried out by the Government on the impact this will have to businesses that depend on skilled and unskilled workers from Europe. However, past experience dictates that successive Governments have not been able to get a handle of migration to the UK and therefore any Government that can finally promise the end of free movement will be hoping to have the support of the electorate at large.

Whilst we are waiting for the much-anticipated Government Whitepaper on the future of immigration law and policy, what we can be certain of is that the Rules will be a skills-based, single system for EU and non-EU Nationals meaning that EU Nationals and their employers will have to satisfy the requirements of the existing Tiers of the points-based system for skilled EU workers to work in the UK. This will further mean that businesses that depend on workers from the EU will need to register as sponsors with the Home Office.

The Government is likely to follow the recommendation of the Migration Advisory Committee that there should not be any special schemes or provision for low skilled workers from the EU. The Government instead will be encouraging businesses to align with their industrial strategy and to automate these processes, to increase wages and train UK workers for these jobs. Whilst this is commendable the concern I have is that these initiatives will not alleviate the immediate short-term pressures that businesses will face in recruitment and nor am I convinced that the Government have a handle on the longer-term pressures of an ageing population which will require hundreds of thousands of jobs to be filled in the coming decades.

The Government is however introducing a pilot seasonal workers scheme for 2 years next March, which will allow 2500 workers from outside the EU to work in the UK for up to 6 months to fill labour shortages during peak production periods. My view is that the Government may be forced to consider similar schemes when shortages become apparent in other sectors such as hospitality and care workers in nursing homes if there is enough pressure from industry to do so. It is important that businesses continue to have a dialogue with Government in order to shape future immigration laws which work for UK PLC.

With both the UK and EU committing to citizens rights of those EU nationals already settled in the UK and UK nationals settled in the 27 EU Member States the Withdrawal Agreement sets out that British Nationals will not require visas to travel for short stays to the 22 EU member counties that are members of the Schengen area and four Schengen- associated states. It will also apply to Romania, Bulgaria, Croatia and Cyprus. Short stays have been defined as up to 90 days in any 180-day period. This is likely to include travellers for the purpose of business visits, leisure and family visits but not for work.

There is at this stage uncertainty as to whether British travellers will need to apply for electronic travel authorisation (Etias – the EU Travel Information and Authorisation System) which is modelled on the US ESTA and is being introduced by the EU for security grounds for all countries outside the bloc, even if they are visa-exempt. However, what is clear is that the European Health Insurance Card will no longer give British citizens rights to reciprocal healthcare meaning that arrangements should be made for travel insurance.

The UK Government has also declared its intention of EU 27 Member State Citizens not requiring visas for short stay visits (likely to be 6 months as is the case currently with non-EU Nationals) for the purposes of leisure and business.

All is still up for negotiation but that said, short of us deciding to stay in the EU this is the shape of the UK immigration policy – deal or no deal.

 

Last week saw the legal publications announce their rankings of the best law firms in the UK. Paragon Law was recognised as the leader in the field of immigration law in all of them:

 

  1. In their inaugural list of the 200 Best Law Firms in England and Wales The Times newspaper commended Paragon as one of the 11 best immigration law firms and in particular recognising the strength of the firm’s lawyers in specialising in different areas of immigration law. Thalej Vasishta was recognised for his work in corporate immigration law, Kirin Abbas was highlighted for her work with Universities and Mark Lilley-Tams was mentioned for his personal immigration law know-how. We are delighted to be included in this list which is based on peer review of over 20,000 lawyers. The rankings can be viewed here

 

  1. We also continue to maintain Top Tier status in the Legal 500 publication with particular recognition in our work for acting for both individuals and businesses, “with a particularly strong track record in advising on corporate immigration compliance and on immigration aspects of establishing new businesses in the UK”. In addition to Thalej Vasishta and Mark Lilley-Tams, fellow director Deirdre Sheahan and senior associate Aldijana Hoad are also recognised. The rankings can be viewed here

 

  1. We also continue to maintain our Band 1 status in the Chambers and Partners. Our ranking can be viewed here

Thal Vasishta said “I am delighted with these rankings particularly as it demonstrates the hard work of the lawyers at Paragon Law, our strength in depth and the individual niche specialisms that the solicitors have within our immigration law practice. What also makes our inclusion special is that we must be the only firm that does not submit profiles or references to the legal directories but still continue to be recognised for our work”.

 

The Immigration Health Surcharge is currently £200 per year for most migrants. Those on student visas pay a reduced rate of £150 per year.

 

The Government has announced that they plan to double the Immigration Health Surcharge in December 2018. However, they have not set a specific date in December.

This means that, as of December, those applying for new visas will have to pay £400 per year for the duration of their visa in addition to their visa application fee. Tier 4 students and those entering on the Tier 5 (Youth Mobility Scheme) will have to pay £300 per year. All dependants will also have to pay the same amount as the main applicant.

We advise that applicants should try to submit applications before December 2018 where possible, in order to avoid this significant increase. In particular, you should consider if you or your Tier 2 employee will need to make an extension application in the near future and progress this as soon as you can. The Immigration Rules allow applicants to submit an extension application up to three months before their current leave expires.

In respect of Tier 2 Sponsors you should also make sure that you have sufficient certificates of sponsorship available for all employees who will need them. If you are hoping to sponsor new recruits, you should start running any mandatory advertising now if you have not already done so to allow the 28-day period to run. It will be even more important to ensure that the advertising meets all of the Home Office stipulations as making corrections will cause delay.

If you require further advice or assistance with your application then please get in touch with your usual Paragon Law contact or email enquires@paragonlaw.co.uk or call 0115 9644123.

As we have previously written about here, it is going to be necessary for EEA nationals to make an application for settled status to continue to remain and work in the UK after the transition period which ends 31 December 2020.

Those EEA nationals who qualify to apply in Phase 2 must do so by 21st December 2018.

Who can apply?

  • You are an EU national with a valid passport; or
  • You are a non-EU family member of an EU national and you have a biometric residence card; and
  • You or your family member are employed in an occupation or are part of a group which has been announced in Phase 2.

What occupations and groups fall within Phase 2

From 15 November 2018 those employed at a higher education institution which is on the Tier 4 Register of Licensed Sponsors will be able to apply. Also included are looked after children in participating local authorities and EEA nationals receiving support from specified community organisations.

From 29 November 2018 those employed in the health sector which has been defined broadly under the pilot and includes amongst others, those who are registered with the General Optical Council and the General Pharmaceutical Council.

For a complete list of all the Applicants who will be able to make an application please click here

Right to Work Checks

After the transition period, an employer will no longer be able to rely on right to work documents that they have currently checked and retained for EU colleagues.

If an Applicant is granted settled status or pre-settled status, they will be issued with a new form of ‘digital’ status. Therefore, we advise:

  • Retain a copy of the new digital status once received by the colleague confirming their settled or pre-settled status; or
  • If the application has not been decided prior to the end of the transition period (31 December 2020) then obtain confirmation of the application having been submitted on-line and obtain a copy of the digital status once received; and
  • If the colleague is given pre-settled status this may be time-limited (to be confirmed) to allow for a subsequent application for settled status. Therefore, you must carry out follow-up checks and retain a copy of the new digital status document.

What Steps to take NOW

  1. Assess which of your colleagues qualify to apply when Phase 2 opens and encourage them to do so; and
  2. Set-up a process to ensure that colleagues move forward with their application as and when it is opened to them; and
  3. Set-up a process that allows you to update your right to work documents as and when received by colleagues.

How Paragon Law Can

Paragon Law has a dedicated Brexit Group which has been advising businesses, universities and individuals since the outcome of the Brexit referendum. We have supported organisations in the following ways:

  • Workshops supporting EU colleagues and HR staff – Subjects covered include the criteria for applying, the application process, and what documents or other evidence will be needed to make an application; and
  • Surgeries – we guide EU colleagues through the digital application process, deal with complicated applications or advise on alternative immigration routes which may be better suited.

“The sessions provided by Paragon Law were well attended and covered the key issues of interest to staff, in an accessible and easy to understand way.  The sessions generated lots of questions from staff concerned about their own circumstances and these were handled confidently and sensitively.  The firm was selected because of their specific expertise in immigration law and this expert knowledge came across during the sessions. We were happy to allow Paragon Law access to our staff to deliver these sessions and would be happy to use them again in the future. They have since also provided some follow up FAQs for staff on the current Brexit position which we have published on our staff intranet.”

Rebecca Gott, HR Policy and Strategy Manager, De Montfort University  

 

If you would like to know further details of how Paragon Law can support your business or EU employees, please email corporate@paragonlaw.co.uk.

Below is the full list of those who are able to apply. This is a summary of the information contained within the immigration rules. If you wish to view the original rules please click here. Please note the first list relates to those who can apply from the 15th November 2018, and the second list is those that will be able to apply from the 29th November 2018. At present, this pilot is available until the 21st December 2018.

From 15th November 2018

(i) Higher Education

  • A person employed or engaged by a Higher Education Institution or Overseas Higher Education Institution on the Tier 4 Register of Licensed Sponsors

(ii) Looked-after Children

(A child being looked after (within the meaning of section 22(1) of the Children Act 1989) by, or a person who was such a child and is eligible for support or assistance under the Children Act 1989 (or under regulations made under that Act) from, one of the following local authorities:

  • Kent County Council;
  • Lincolnshire County Council;
  • London Borough of Haringey;
  • London Borough of Waltham Forest; or
  • Sheffield City Council;

(iii) Supported persons

A person receiving support from one of the following organisations:

  • Ashiana Sheffield, Knowle House, 4 Norfolk Park Road, Sheffield, S2 3QE;
  • Coram Children’s Legal Centre, Riverside Office Centre, Century House North, North Station Road, Colchester, CO1 1RE;
  • East European Resource Centre, Room 18-19, 238-246 King Street, London, W6 0RF;
  • Rights of Women, 52-54 Featherstone Street, London, EC1Y 8RT;
  • St Vincent Support Centre, Curtis Building, 4 Barking Avenue, Leeds, LS9 9LF;
  • The Cardinal Hume Centre, 3-7 Arneway Street, Horseferry Road, London, SW1P 2BG; or
  • The Roma Support Group, Alan Shelley House, 318 Barking Road, London, E13 8HL

From 29th November 2018

(i) A person employed or engaged by one of the following institutions or organisations:

 

  • An NHS Foundation Trust in England;
  • An NHS Trust in England;
  • Care Quality Commission;
  • Health Education England;
  • Health Research Authority;
  • Human Fertilisation and Embryology Authority;
  • Human Tissue Authority;
  • Medicines and Healthcare Products Regulatory Agency;
  • National Institute for Health and Care Excellence;
  • NHS Blood and Transplant;
  • NHS Business Services Authority;
  • NHS Counter Fraud Authority;
  • NHS Digital (the Health and Social Care Information Centre);
  • NHS England (the NHS Commissioning Board);
  • NHS Improvement (Monitor and the NHS Trust Development Authority);
  • NHS Resolution (the NHS Litigation Authority); or
  • Public Health England.

(ii) A person employed or engaged by one of the following institutions or organisations:

 

  • A Local Health Board in Wales;
  • Health Education & Improvement Wales;
  • Public Health Wales;
  • The Welsh Ambulance Service; or
  • Velindre NHS Trust.

(iii) A person employed or engaged by one of the following institutions or organisations:

  • A Health Board or Special Health Board constituted under section 2 of the National Health Service (Scotland) Act 1978;
  • Common Services Agency for the Scottish Health Service (established under section 10 of that Act
  • Healthcare Improvement Scotland (established by section 10 of that Act);
  • Social Care and Social Work Improvement Scotland (known as the Care Inspectorate) established under section 44 of the Public Services (Reform) (Scotland) Act 2010; or
  • Scottish Social Services Council established under section 43 of the Regulation of Care (Scotland) Act 2001.

(iv) A person employed or engaged by one of the following institutions or organisations:

  • A Health and Social Care Trust in Northern Ireland;
  • Northern Ireland Blood Transfusion Service;
  • Northern Ireland Guardian Ad Litem Agency;
  • Northern Ireland Medical and Dental Training Agency;
  • Northern Ireland Practice and Education Committee;
  • Northern Ireland Social Care Council; Patient and Client Council;
  • Regional Agency for Public Health and Social Well-being (the Public Health Agency);
  • Regional Business Services Organisation;
  • Regional Health and Social Care Board; or Regulation and Quality Improvement Authority.

(v) A person who is employed:

  • To provide, or to support the provision of, regulated activities as prescribed in Schedule 1 (read with Schedule 2) to the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 (S.I. 2014/2936), and who is also employed or engaged by an institution or organisation registered with the Care Quality Commission; or
  • For the purposes of an establishment or agency in Wales regulated under Part 2 of the Care Standards Act 2000; or
  • For the purposes of a service regulated under Part 1 of the Regulation and Inspection of Social Care (Wales) Act 2016.

(vi) A person who is employed or engaged by a party to:

  • A general medical services contract to provide primary medical services, or an agreement for the provision of primary medical services under section 50 of the NHS (Wales) Act 2006; or
  • A general dental services contract to provide primary dental services, or an agreement for the provision of primary dental services under section 64 of the NHS (Wales) Act 2006.

(vii) A person who:

  • Is providing care services as defined in section 47(1) of the Public Services Reform (Scotland) Act 2010 and registered under that Act; or
  • Is employed or engaged by an organisation registered with Social Care and Social Work Improvement Scotland; or
  • Is, or who is employed or engaged in connection with the provision of services under the National Health Service (Scotland) Act 1978 by, a party (other than a Health Board) to: –
    • an arrangement to provide services under section 2C of that Act; –
    • an agreement to provide services under section 17C of that Act; –
    • a contract to provide services under section 17J of that Act; or –
    • an arrangement to provide services under section 25, 26 or 27 of that Act.

(viii) A person who is employed or engaged by a General Practitioner Federation or by any entity with which the Northern Ireland Regional Health and Social Care Board has a contract or an arrangement under the Health and Personal Social Services (Northern Ireland) Order 1972 to provide Family Practitioner Services.

(ix) A person who is employed or engaged by a body registered with, or monitored or inspected by, the Regulation and Quality Improvement Authority, and who, if that body were in England and they were employed or engaged by it, would meet the criteria set out in (v) bullet point 1, above.

(x) A person employed or engaged by, or registered with, one of the following organisations:

  • General Chiropractic Council;
  • General Dental Council;
  • General Medical Council;
  • General Optical Council;
  • General Osteopathic Council;
  • General Pharmaceutical Council;
  • Health and Care Professions Council;
  • Northern Ireland Social Care Council;
  • Nursing and Midwifery Council;
  • Pharmaceutical Society of Northern Ireland;
  • Scottish Social Services Council (under the Regulation of Care (Scotland) Act 2001)

small businessAs of 18th July, sponsors must report to UKVI if the size of their business changes from small to medium/large or vice versa. This does not apply to charities.

Why do I have to report this?

The Immigration Skills Charge was introduced in April 2017.Sponsors pay a set amount for each year that they sponsor a Tier 2 (General) or Tier 2 (ICT- long term) migrant.

Small companies pay a reduced rate, currently £356 per year of sponsorship. Medium and large companies pay a higher rate of £1000 per year.

UKVI record the size of the business when they first grant a licence, because small businesses also pay a lower application fee. However, some sponsors will move from being ‘small’ businesses to being ‘medium’ or ‘large’ businesses during the life of their licence (or vice versa). UKVI therefore need to know this in order to charge the correct rate of Immigration Skills Charge.

How do I know if I am a ‘small’ business?

A small company must meet at least two of the following conditions:

  • annual turnover must be not more than £10.2 million
  • the balance sheet total must be not more than £5.1 million
  • the average number of employees must be not more than 50

The definition of a ‘small company’ for this purposes is the same as the definition of a ‘small company’ for the filing of small company accounts. Therefore, as a rule of thumb, when your business starts having to file accounts according to the rules for medium or large companies, then you must make the report. UKVI does not draw any distinction between a medium and large business, so this change does not have to be reported.

When must the report be made?

The report must be mad within 10 days of it taking place. Therefore, the Authorising Officer should be mindful of this duty when the annual accounts are being collated, so that the report can be made in a timely manner.

Therefore, you should also consider whether you are still a small business when you assign a certificate of sponsorship and pay the Immigration Skills Charge.

However, if you do realise that you forgot to report in time m you should make the report as soon as you realise that it is due. You may then have to pay the extra Immigration Skills Charge for certificates assigned after the change.

How do I make the report?

The report must be made through the Sponsorship Management System by a level one user. If you require help with this, please contact your usual Paragon Law contact or Lydia Watkinson at Lydiaw@paragonlaw.co.uk

The UK Government has released a toolkit aimed at assisting employers who are employing EU Nationals, or who employ family members of EU nationals. This toolkit will be very useful for any employers who currently rely upon employing EU nationals or their family members, or who may wish to do so in the future.

One of the negotiation items which has been agreed between the UK and the EU is that all EU nationals and their family members who currently reside in the UK, or who arrive in the UK before the end of December 2020, will need to apply for ‘settled status’.

There will be a need to make an application for all EU nationals, regardless of whether they have already been issued with documents by the government proving their right to stay.

If any EU nationals do not make an application before June 2021, other than Irish nationals, who are a special category and will not need to apply, then they will no longer have a right to remain in the UK and they will no longer have a right to work.

This places the employee at risk of breaching criminal laws by working without permission, and places employers at risk of civil fines for employing people where they do not have a right to work.

There are approximately 3 million people in the UK who must make an application to avoid becoming unlawfully present. Whilst the Home Office will have discretion to allow applicants in special circumstances to apply after the cut-off date, there is a high risk that any out of time application will be automatically rejected.

The government have released a toolkit for Employers as part of their information campaign to spread awareness of the need for employees to make an application and to avoid finding themselves unlawfully in the UK.

The toolkit that has been released consists of:

  • Key things that Employers need to know
  • Key Information that can be used for ‘presentations’ or ‘face-to-face events’ or ‘webinars’ with EU Citizen Employees
  • Information Videos
  • Leaflets which can be provided to EU Citizen employees
  • Posters which can be placed in communal areas spreading information

The information has been provided in a way that allows employers to pass on the relevant information without needing to interpret it. The information has been summarised to highlight the key points without going into the nitty gritty. A more detailed statement of intent provides much more information over what the settled status scheme will involve.

There is no legal obligation for employers to provide information to their employees, and, although employers may contribute towards the costs of employees making applications, there is no requirement for them to do so. It is however important that employers do not provide immigration advice to employees as this is not permitted without the necessary accreditation.

To access the governments toolkit click here.

Paragon Law have delivered seminars, workshops and one-to-one advice for EU employees and their family members to provide assistance in light of Brexit. If you are concerned about the potential negative impacts on your workforce, and you employ EU nationals or their family members, please get in touch with your usual Paragon Law contact or contact us at enquiries@paragonlaw.co.uk

to see what support we may be able to provide you.

NHS nursesNHS Overseas Visitor Charges

 

Concerns over so called health tourism in in the UK has led the government to introduce changes to treatment provided to overseas visitors. The government’s aim is to recoup as much as £500 million a year by 2017-2018 from overseas visitors’ and migrants’ use of the UK National Health Service (NHS).  Consequently, in April 2015, the first of these changes were made to the way the UK National Health Service (NHS) charges overseas visitors for NHS hospital care. These regulations were amended most recently on 23rd October 2017 by the NHS (Charges to Overseas Visitors) (Amendment) Regulations. This Article provides an overview of the circumstances in which a person may be subject to NHS charges.

 

Who is an overseas visitor?

Within the UK free NHS treatment is provided on the basis of an individual being ‘ordinarily resident’ in the UK. It is not dependent on one’s nationality, payment of UK taxes, national insurance contributions, having an NHS number or owning property in the UK.

A person is said to be ordinarily resident in the UK when their ‘residence is lawful, adopted voluntarily, and for settled purposes as part of the regular order of their life for the time being whether of short or long duration’.

In practice, one is ‘ordinarily resident’ in the UK if they are living and working in the UK and are:

  • A British citizen
  • Naturalised within the UK
  • Settled within the UK i.e. holding Indefinite Leave to Remain.

The Charging Regulations place a legal obligation on any provider of relevant service including non-NHS organisations such as private and voluntary providers supplying NHS services to establish whether a person is an overseas visitor to whom charges apply or whether they are exempt from charges.

How will this change affect NHS users?

From 23rd October 2017, overseas visitors requiring treatment will be told upfront if their care/treatment is chargeable before treatment begins. Providers of relevant care are required to recover these charges in full in advance of providing them unless to do so would prevent or delay provision of urgent or emergency care. All treatment received at an NHS facility will be chargeable unless it is an exempt service such as:

  • Treatment at GP surgeries
  • Accident and emergency (A & E) services (whether provided at an A & E department or similar e.g. at an urgent care centre, minor injuries unit, walk-in centre etc.) This does not include A & E services provided after an overseas visitor has been admitted as an in-patient or at a follow-up outpatient appointment.
  • Family planning services – this excludes termination of an established pregnancy as this is not considered to be a method of contraception or family planning and also excludes infertility treatment.
  • Services provided as part of the NHS 111 telephone advice line
  • Treatment required for a physical or mental condition caused by torture, female genital mutilation, domestic violence or sexual violence -except where the overseas visitor has travelled to the UK for the purpose of seeking that treatment

 

Exempt Categories of person- who will not be charged for NHS hospital treatment?

There are also some special groups who will not have to pay for NHS treatment

  1. Those who have paid the Immigration Health Surcharge
  2. Those with an enforceable EU right to free health care
  1. Vulnerable patients (including refugees and asylum seekers) and those detained

Evidencing your entitlement to NHS treatment

NHS providers have a duty to check evidence of entitlement from those patients who assert that they qualify for NHS treatment under a specified exemption. It is imperative that NHS users have the correct documentary evidence to avoid being charged for NHS treatment received. The NHS provider may ask for both evidence of immigration status and address. For applicants whose immigration status documents have expired but they have submitted an in time application for further leave to remain, the NHS providers’ Overseas Visitor Managers (OVMs) are authorised to make enquiries about a patient’s immigration status. Such enquiries are sent via email to the Home Office’s Evidence and Enquiry Unit who will respond to such enquiries within 5 working days. OVMs are not required to obtain a patient’s consent before sharing non-clinical data with the Home Office for purposes of determining the patient’s immigration status. However, the patient must be notified that their data is being shared and how this data may or will be used

Travel and Health insurance

People living outside the EEA including former UK residents are advised to make sure that they are covered by personal health insurance unless an exemption applies to them. The lack of personal health insurance could be very costly as any chargeable treatment received will be charged at 150% of the NHS national tariff. Failure to pay this charge may have an effect on any future immigration applications for entry clearance or leave to remain that an individual makes.

Conclusion

It can be seen from the level of fees generated through the introduction of these provisions, that they are relevant to many coming to the UK. It is important that one does not owe a debt to the NHS as this could impact upon one’s ability to qualify for leave to enter or remain in number of categories such as a spouse. In our experience, people are not always aware that they owe a debt to the NHS as they may not have been advised of the charges at the point of service. Since 6 April 2016, the NHS has an obligation to inform the Home Office of certain debts where they are outstanding for more than two months. As such we would suggest that applicants may wish to make enquiries of the NHS to pre-empt a refusal of leave to enter or remain and to check that why do not have an outstanding debt with the NHS. Where an applicant is unsure whether their immigration status in the past allowed them to access free NHS treatment then we can advise on this prior to contact being made with the relevant NHS body.

 

If you have any queries about this article, please contact Emma Okenyi at emmao@paragonlaw.co.uk