The Home Office have released a number of updates on the EU settlement scheme in the last 2 weeks.

Refunds

There will be no fee for a settled status application. Applicants who applied during the pilot phase will receive an automatic refund. The money will be paid to the card which paid the fee for the application. Those who have paid the fee should look out for this. Our prior experience is that refunds from the Home Office can be missed and they do sometimes have to be chased.

How is it working so far?

The Settled Status Scheme has been open in a pilot form since last year. It is currently open to those EU nationals who have a biometric passport and EU family members who have a biometric residence permit issued since April 2015.

The Home Office say that they have processed over 150,000 applications, with no refusals. Anecdotally, we have heard that the process is fairly straightforward when the technology works. Most issues have been with the App not working, however this was a pilot phase largely to test the App and therefore some bugs may be expected.

Roll-Out

The full scheme will now be opened in phases.

  • 30th March- Scheme will open to EU nationals and their family members who are applying from inside the UK. The scheme will also be open for nationals of Iceland, Liechtenstein, Norway and Switzerland and their family members who are applying from inside the UK.
  • 9th April- Scheme opens for applications from outside the UK.
  • 1st May- Scheme opens for Zambrano carers.

Additional Help and Support

The application process for the EU Settlement Scheme is online and requires an Android device with ‘near field communication’ i.e. contactless technology. This is because the biometric chip in the passport can be read and authenticated by the Android device.

For those who do not have this, there will be a number of locations where applicants can take their passports to be authenticated. They will be in the following locations,

  • Bath
  • Belfast
  • Caerphilly
  • Dudley
  • Edinburgh
  • Hertfordshire
  • Hull
  • Lincolnshire
  • London (Camden)
  • London (Hackney)
  • London (Southwark)
  • Newcastle upon Tyne
  • Sandwell
  • Southampton
  • Stockton-on-Tees
  • Trafford
  • Warwickshire

Contact details for each location are available here https://www.gov.uk/government/publications/eu-settlement-scheme-id-document-scanner-locations/locations-offering-chip-checker-services . Those wishing to use the service must book an appointment.

The geographical spread of these is clearly limited. For those without an android phone who are not local, it may be cheaper to buy a new phone than pay the travel cost!

There is also additional support for those who have difficulty with using the technology, including those with disabilities. Applicants can attend an ‘Assisted Digital’ location and a range of locations listed here https://www.gov.uk/government/publications/eu-settlement-scheme-assisted-digital-service/assisted-digital-test-location.

Home visits are offered in the locations listed here https://www.gov.uk/government/publications/eu-settlement-scheme-assisted-digital-service/assisted-digital-home-visits .

Overall, the spread of services seems rather odd and quite patchy, particularly in Scotland and Northern Ireland. The system works well for those who have the access to, and ability to use, the online system. However, for those who cannot use it, for instance due to poverty, disability or vulnerability, the support appears patchy and difficult to access. Anybody who struggles with using the internet will have significant difficulty. 

What do you get to show ‘settled status’?

One of the more unnerving aspect of this process is that it is electronic only. Applicants do not get any physical evidence of their status. While they do receive a grant letter, this states on it that it is not evidence of immigration status. There is no vignette or stamp in a passport and no biometric residence permit.

Employers who have to do ‘right to work’ checks will have to use a new online system here https://www.gov.uk/check-job-applicant-right-to-work . This is separate from the ‘Employer Checking Service’ which is used if an employee has an application outstanding with the Home Office.

The applicant must give you an access code, which is generated by the Home Office. You use that code to access their record. Of course, such a system is only as good as the technology and record keeping behind it. As with many of these systems operated by the Home Office, when they work, they work well. However, as soon as something unexpected or unusual happens, it can become very difficult to resolve.

Right to Work Checks- Important changes

The Government has released a new Code of Practice on Preventing Illegal Working. The new code reflects the fact that, as of 28th January 2019, employers can now conduct ‘right to work checks’ online for certain employees.

Employers can still carry out manual checks if they choose to.

Why do Right to Work Checks?

  • The UKVI can serve an employer with a notice requiring the payment of a penalty of a specified amount where they employ a person who is subject to immigration control; and
  • aged over 16; and
  • not allowed to carry out the work in question because either they have not been granted leave to enter or remain in the UK or because their leave to enter or remain in the UK:
  • is invalid;
  • has ceased to have effect (meaning it no longer applies) whether by reason of curtailment, revocation, cancellation, passage of time or otherwise; or
  • is subject to a condition preventing them from accepting the employment.

In the event that an employer is found to be employing an employee who does not have the right to work, then they will have a defence if they have carried out the correct right to work checks. This can mean avoiding a financial penalty of up to £20,000.

In addition, if you are a licenced sponsor, failure to do right to work checks could lead to the loss of your sponsor licence.

What has changed?

Previously, employers had to conduct a manual check of an employee’s right to work documents in a specified form. Going forward, employers will have the option of making an online check to find out of an employee has the right to work. They will have to follow a three step process.

  1. The employee must give their permission for you to view their Home Office record online. They must do this by using the ‘Prove your right to work to an employer’ page on the .gov.uk website. This will generate a share code.
  2. The employer can then carry out the online right to work check by using the ‘View a job applicant’s right to work details’ on the .gov.uk website. The employer will need to enter the share code.
  3. The employer will receive a notice from the Home Office confirming whether the employee has the right to work and any conditions attached. The employer must retain this as evidence of having done.

This option will not be available for all employees because not all employees will be on the Home Office system. At present, an employee must have applied for ‘settled status’ as an EU national, or have a biometric residence permit. This means that you cannot use it for British nationals or those whose immigration status is proved by a vignette or sticker in their passport. For those employees, an employer must still carry out a manual check.

An improvement, but care still needed

This system should be more straightforward for employers to use for those employees who are eligible. However, there are some points that employers should still bear in mind.

This system is different from the existing online ‘Employer Checking Service’ checks. These are only for use where an applicant or employee has submitted an application for a visa to the Home Office before their old leave expired and the Home Office are still considering it. If the employee has the right to work, then the employer will receive a Positive Verification notice which will give them a statutory excuse for 6 months only. Employers must ensure that they are using the correct scheme.

Employers must make sure that they are using the gov.uk website. The Home Office clearly anticipate that there may be imposter websites that imitate the government website. Results from these will not give you a statutory excuse.

Employers must carry out their own online check using the share code. They must not rely on an online result provided by the employee themselves.

Employers must still check that the person that they are employing is the person for whom they get a notice, for example by looking at the photograph. You will not have a statutory excuse if the person you employ is clearly an imposter.

Some employees will require additional documents. For example, Tier 4 students can work only limited hours in term time. The employer must obtain evidence of their term dates from the university before employing the individual. These must be retained and refreshed over time. If you have any questions or concerns regarding right to work checks, or any other aspect of employing migrant workers, please contact Paragon Law for further advice and assistance.

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.

 

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.

HMT Empire Windrush

An article by Karen Rimmer, Paragon Law

On 22 June 1948 the ship MV Empire Windrush arrived at Tilbury Docks, Essex, bringing workers from Jamaica, Trinidad and Tobago and other islands, as a response to post-war labour shortages in the UK. The ship carried 492 passengers – many of them children.

This now infamous docking has given its name to a generation of people present in the UK who have come to represent the devastating impact that so many recent drastic changes of legislation and Immigration Rules have had on our society.

In 2012, official figures showed that net immigration was still running at about 250,000 a year, well above the “tens of thousands” that the Conservatives promised the Coalition would deliver. In response to this, Theresa May gave a speech in Parliament about her wish to ensure fairness by introducing a new Immigration Bill[1]. At the time, she told the Telegraph newspaper that it was her aim to “to create here in Britain a really hostile environment for illegal migration”. [2] There has been much media coverage of the speech Mrs May gave in parliament that day. She loudly declared:

Part 3 of the Bill is about migrants’ access to services. We want to ensure that only legal migrants have access to the labour market, health services, housing, bank accounts and driving licences. This is not just about making the UK a more hostile place for illegal migrants – it is also about fairness. Those who play by the rules and work hard do not want to see businesses gaining an unfair advantage through the exploitation of illegal labour. They don’t want to see our valuable public services – paid for by the taxpayer – used and abused by illegal migrants.”

The reality is, however, that even those migrants perfectly legally present have been impacted by the measures taken, and found themselves in dire straits. The Windrush generation are a prime example of this.

The Immigration Act 1971 allowed for those who came from Commonwealth countries to remain in the UK indefinitely and to be exempt from deportation in certain circumstances. However, recent changes in the law have meant that gradually more and more responsibility for immigration control has been delegated to every day service providers.

The hostile environment created by government changes have resulted in the need to present valid ID and proof of immigration status for tenancies, bank accounts, a driving licence, employment opportunities and access to benefits, access to NHS care and financial support. It is also important, as legal professionals have discovered, that the proof of status, is in the correct format. In the current climate, those immigrants who entered the UK prior to the introduction of the new-style biometric residence permit struggle to convince employers of their right to work.

Initial experiences of the Windrush generation came in September 2012, when many people were wrongly accused of having overstayed. A variety of methods were used to inform people of this accusation. Initially, letters were sent. The letters indicated that, without evidence of their right to stay, people would be expected to leave the UK immediately or it would be made difficult for them to remain in the UK. This was usually followed up by a barrage of texts, phone calls and even, in extreme circumstances, knocks on the door.

The government’s response to this was to ask people to make an application to prove their right to remain in the UK. This application, at the time, cost £220[3] (currently £229). Unsurprisingly, many people were not aware of this requirement, and those who were did not apply for various reasons, not least because of the fee. The result of not applying was that many people lost their benefits entitlement, were suspended from work, some even losing their jobs because of the risk of prosecution for employers or have been threatened with eviction. It is also impossible to travel to and from the UK without proof of your immigration status and a national passport (something also required for any paid immigration application at present)

As a firm, we have experienced cases where people have been made homeless, those on long-term sick have had to rely on the support of family and friends whilst their benefits were investigated.

The government officially states, in a statement on the Gov website[4], that they recognise that people will not have documents from 40 years ago. They go on to state that the types of documents that can help an application are exam certificates, employment records, your National Insurance number, birth and marriage certificates, bills and letters.

The reality is that they require a much more detailed demonstration of time spent in the UK. They must be satisfied from the evidence that the applicant has not left the UK for more than 2 years at any time during the period that they have lived in the UK. Some applicants are required to provide documentary evidence to cover every single year of over 60 years residence, which amounts to vast swathes of documents. Routinely, legal practitioners find that, despite a consenting signature to a background check of records, such checks are not carried out. If they were, then it would be seen that the generation of Windrush applicants had validly been present for the requisite time, without them having to be threatened with deportation. The onus is placed squarely on the individual to apply with the right documents, and a correctly completed application or it will be rejected as invalid.

Adding to the trauma of attempting to meet the documentary threshold is the fact that, in recent days, it has come to light that thousands of landing cards were destroyed[5], a phenomenon that we as a firm have come across resulting in difficulty for our clients. It is unclear what it was hoped that this action achieved.

Scaremongery and fear tactics have caused anxiety amongst a generation of people who originally only came to the UK to assist with the post-war effort. They legitimately assumed that they were legally present. Indeed, they were, but did not have the proof to show it.

It is important to receive advice and representation as soon as possible when the Secretary of State indicates that she believes that you may not be legally present in the UK. We can assist with document gathering and make representations to demonstrate eligibility to benefit from the concessions that allowed for indefinite stay in the UK for the Windrush generation. Obtaining sound legal advice early in the process can help to prevent the possibility of removal action being taken at all.


 

To find out more on this subject please contact the writer, Karen Rimmer, at karenr@paragonlaw.co.uk

 

 

 

 

[1] https://www.gov.uk/government/speeches/speech-by-home-secretary-on-second-reading-of-immigration-bill

[2] https://www.telegraph.co.uk/news/uknews/immigration/9291483/Theresa-May-interview-Were-going-to-give-illegal-migrants-a-really-hostile-reception.html

[3] http://webarchive.nationalarchives.gov.uk/20121206084216/http://www.ukba.homeoffice.gov.uk/aboutus/fees/

[4] https://www.gov.uk/government/publications/undocumented-commonwealth-citizens-resident-in-the-uk/undocumented-commonwealth-citizens-resident-in-the-uk

[5] https://www.theguardian.com/uk-news/2018/apr/17/home-office-destroyed-windrush-landing-cards-says-ex-staffer

Home Office Fees

Every year, the fees that are charged for immigration applications, are reviewed and changed. In the past few years, the increase in fees charged has been dramatic and, on occasion, left Applicants struggling to save the required fees to pay for applications before their leave expired.

 

For example, the cost of a family consisting of two parents and two children applying from within the UK for indefinite leave to remain in 2014 would have been £4,372. The same application made now would cost the same family £9,188.

Another example is an applicant applying for leave to remain as a spouse in 2014, would have paid a fee of £601. Nowadays, taking into account the Immigration Health Surcharge, the same application would cost £1,493.

Traditionally, the Home Office have raised fees on the 6th April each year (although they did catch everyone by surprise by raising the fees on the 18th March in 2016). This year will be no different from the normal however, and the Home Office have confirmed that fees will be raised from the 6th April 2018.

Further, the actual Home Office fee increases have now been announced and are available to view here. Although, as anticipated, the fees have gone upwards, the good news is that the rise is not as meteoric as it has been in previous years. In most application types, the Home Office fees have gone up by 4%.

Here are some examples of what the new fees will look like:

In Country Applications

Application Type Current Fee New Fee from 6th April 2018
Indefinite Leave to Remain £2,297 £2,389
Leave to Remain (example as a family member) £993 £1,033
Tier 2 General £677 £704
Naturalisation Fee £1,282 £1,330
European Residence Card £65 £65 (no change)

 

Entry Clearance Applications

Application Type Current Fee New Fee from 6th April 2018
Visit Visa (< 6 months) £89 £93
Settlement £1,464 £1,523
Adult Dependent Relative £3,250 £3,250

 

As can be seen, a rise of 4% is still pretty significant when you are dealing with large sums in the first place, and Applicants will be trying to get their applications submitted before the 6th April 2018 to avoid the higher fee.

Immigration Health Surcharge

As well as the normal Home Office fee increases, the Home Office have confirmed that the Immigration Health Surcharge, introduced in 2015, will be DOUBLING. This is a significant increase in the cost that Applicants applying for limited leave to remain will have to pay.

For Example, an Applicant who is currently applying for leave to remain as a spouse needs to pay:

Home Office fee – £993

Immigration Health Surcharge – £500

Total Cost – £1,493

However, after the Immigration Health Surcharge fee and Home Office fees go up, the same applicant will need to pay:

Home Office Fee – £1,033

Immigration Health Surcharge – £1,000

Total Cost – £2,033

Official Confirmation has not been provided as to when the Immigration Health Surcharge will go up, but it would be sensible to assume that it will go up from the 6th April 2018 (or even sooner!). Applicants should try and get applications submitted as soon as possible if they have the choice of applying before the fee rises.

When to Submit your Application

It is very important that Applicants who are preparing to make extension applications, submit their applications as soon as possible if they want to avoid the fee increase. This will only be possible if you qualify for an extension of leave before the 6th April 2018. If you have the choice of whether to apply now or later, you may decide you wish to apply now and avoid any additional fees that will otherwise need to be paid.

It is important that if Applicants are trying to avoid the fee rises, they remember the date the application is considered to be made depends on what type of application is being made and how it is submitted.

For non-citizenship postal applications, the date the application is made is the date that the application is posted (always retain proof of postage and used a tracked delivery service).

However, for citizenship postal applications, the date the application is made is the date that it is received by the Home Office.

Tip: Historically, where Applicants have applied to the Home Office using the same day premium service, the Home Office have only charged the fee which is paid by the Applicant when the appointment is booked, even if the appointment takes place after the fee rise. It may be that the Home Office will continue this practice this year and Applicants can avoid paying the higher fees if they book and pay for their same day service prior to the 6th April 2018 even for appointments taking place after that date.