Safe Return Reviews—Compliance but not compassion

 

Immigration analysis: Deirdre Sheahan, associate, and Decla Palmer, trainee, both at Paragon Law look at the

new ‘safe return’ review policy ushered in by the UK government. They explain that while the new policy is

technically compliant with the 1951 Refugee Convention (the Convention), it nonetheless demonstrates that the

UK does not intend to offer more than the minimum required by international standards.

To read this article in full please see the link here: Safe return reviews

 

From 6th April 2017, the Home Office will require some Tier 2 applicants to obtain criminal record checks. The roles that will be subject to this requirement are typically in healthcare, education or other sectors where applicants may work with vulnerable adults or children.

 

Superficially, this may appear a reasonable requirement. However, if an overseas applicant is applying to work in a role where a disclosure and barring check is necessary, then they already have to acquire a criminal record certificate from abroad. For example, any healthcare professional applying to work in the NHS already has to comply with these requirements in order to be appointed in the first place. This new measure appears to extend the requirement for a criminal record check to posts where one would not be required of a settled worker.

Even more surprisingly, the requirement also applies to adult dependants of the main applicant. Therefore, if a UK business wishes to recruit an Optometrist from outside the EEA, and that person wishes to live in the UK with their spouse, then the spouse must get a criminal record certificate.

Who does this apply to?

This requirement applies to a wide range of roles and is determined by an applicant’s SoC code. It will include, for example, Pharmacists and Optometrists (see below for the full list).

Adult dependants of the main applicant will also have to get a criminal record certificate.

What do applicants have to provide?

Applicants must provide a criminal record certificate from any country in which they have been resident for 12 months or more in the last 10 years, unless they were 17 or under at the time that they lived in that country. The 12 month period will be calculated consecutively or cumulatively. For example, if an applicant has lived in a country for two separate periods of 6 months, then they will need to get a certificate from that country.

If the certificate is not in English, then the applicant must also provide a translation.

The certificate must be no more than 6 months old at the time that the application is submitted and must also be within any validity period expressly stated on the certificate itself.

How do applicants get a criminal record certificate?

This will vary from country to country. The Home Office publish a guide of all countries with information about how to obtain a suitable certificate in each. The guide can be found here

https://www.gov.uk/government/publications/criminal-records-checks-for-overseas-applicants

If applicants are still unsure what they need to do, they should contact their embassy in the first instance.

Applicants should keep a record of all of the steps that they take to try and get a certificate.

How will this affect employers?

This is yet another administrative hurdle for both employees and employers to get over. The biggest concern is that this requirement may cause delay in getting new employees to the UK. Inevitably, different jurisdictions will have different time frames from dealing with requests. Some applicants may need to obtain certificates from more than one jurisdiction. Some applicants may not be able to get a certificate at all.

What steps should employers take to reduce the impact of this requirement?

If possible, employers should aim to submit those applications that they can before April 2017. The immigration skills charge is also due to come into force in April 2017, so there is a clear benefit to submitting applications before that date where this is feasible.

Employers should inform any new employee that they identify of this requirement as early as possible. UKVI suggest doing this at the point that a certificate of sponsorship is assigned, however it could also be done as soon as any advertising has finished, when the employer is applying for the restricted certificate of sponsorship.

This will be particularly important in countries where a certificate may be impossible to obtain. If the applicant cannot get a suitable certificate, then UKVI have indicated that they will expect employers to do what they can to obtain background checks, for example by taking up references.

What if we cannot get a criminal record certificate?

If an applicant simply cannot get a certificate, then they should write a clear list of all of the steps that they have taken to try and get one. They should also attach copies of any evidence that they have to illustrate this, for example an itemised telephone bill, proof of postage or email chains.

This should all be submitted along with the visa application. The embassy will consider the evidence, and also their knowledge of the current situation within the country in question. If they are persuaded that it was not ‘reasonably practicable’ for the applicant to obtain a certificate, then they will waive the requirement.

1181 – Health services and public health managers and directors

1184 – Social services managers and directors

2211 – Medical practitioners

2212 – Psychologists

2213 – Pharmacists

2214 – Ophthalmic opticians

2215 – Dental practitioners

2217 – Medical radiographers

2218 – Podiatrists

2219 – Health professionals not elsewhere classified.

2221 – Physiotherapists

2222 – Occupational therapists

2223 – Speech and language therapists

2229 – Therapy professionals not elsewhere classified

2231 – Nurses

2232 – Midwives

2312 – Further education teaching professionals

2314 – Secondary education teaching professionals

2315 – Primary and nursery education teaching professionals

2316 – Special needs education teaching professionals

2317 – Senior professionals of educational establishments

2318 – Education advisers and school inspectors

2319 – Teaching and other educational professionals not elsewhere classified

2442 – Social workers

2443 – Probation officers

2449 – Welfare professionals not elsewhere classified

 

For further information contact Thalej Vasishta at thalejv@paragonlaw.co.uk.

european job seker image

 

EEA Nationals are allowed to remain in the UK whilst they are exercising their right to freedom of movement under the EEA Regulations. In order to have a right to remain in the UK however, EEA nationals must fit within one of the ‘qualified’ categories, which are:

  • Workers
  • Self-employed
  • Students
  • Self-sufficient persons
  • Jobseekers

Over the years, the EEA Regulations have been amended a number of times by the UK Government. These amendments appear to have reduced the rights that EEA jobseekers have to remain in the UK. This can be particularly important for EEA nationals who wish to apply for permanent residence. A permanent residence application requires a continuous period of 5 years ‘qualified status’ with no breaks, and EEA Nationals may need to show that they were present in the UK as a jobseeker to fill any gaps between work or studies.

Two recent decisions of the Court have helped to re-affirm the rights that EEA Nationals have to remain in the UK whilst job seeking.

In the case of KS v Secretary of State for Work and Pensions [2016] UKUT 269 AAC the Tribunal looked at the requirement within the regulations that a person provide ‘compelling evidence’ where they had been job seeking for more than 91 days. This requirement was controversial, as the previous case of Antonissen (C-292/89) had found that a person should be permitted a period of at least 6 months to find work and be treated as a ‘worker’ during that period. In KS the Court explained that the requirement to provide ‘compelling’ evidence however was just a requirement that on the ‘balance of probabilities’ a person establish that they have a genuine chance of finding work. That is the normal standard of proof applied in civil courts and therefore the use of the word ‘compelling’ does not introduce an additional hurdle for EEA nationals to jump through.

In the case of MB and others v Secretary of State for Work and Pensions [2016] UKUT 372 AAC the Court went on to consider the ‘compelling evidence’ test of genuinely searching for and finding work. The Courts confirmed that a person must have a chance of being engaged within a ‘reasonable period’ and that the test involved looking forward, including if the person was to obtain qualifications which would enable them to obtain work. There must be ‘real prospects’ of obtaining work and the burden is on the jobseeker to show this.

The Court’s decisions in these cases are re-assuring as the Courts have shown that they will continue to interpret EU law in a manner which continues to strongly protect free movement rights for EEA nationals and their family members.

Mark Lilley-Tams

For further information please contact Mark Lilley-Tams at markl@paragonlaw.co.uk.

They say legends from Nottingham wear green tights, but sometimes, very occasionally, they wear red shirts.

Whilst Robin Hood’s outlaws famously lived in trees, Brian Clough’s Nottingham Forest squad of the late 70’s and 80’s pulled a few up in their epic journey towards being crowned champions of England and Europe as well as seemingly having their own season tickets to play at Wembley finals on a regular basis.

Two players who perhaps define that era more than any others, and for that reason are revered by Forest fans as giants of the game, are John “Robbo” Robertson and Des “you’ll never beat Des Walker” Walker.

On Friday 30 October 2015, Paragon Law was proud to sponsor a table at the “Legendary Evening” within the photo-adorned rooms of the Nottingham Forest Robin Hood Suite to raise funds for the John Van Geest Cancer Research Centre. Following an inspiring talk on the work on the of the Research Centre from Professor Robert Rees we were treated to a full hour of anecdotes from Robbo and Des about their respective careers under “Cloughie” and how the great man had inspired them in different ways and at different times, instilling a mixture of fear, awe and respect in varying measures. In many ways the lessons learnt were applicable to management techniques from all sectors and certainly not limited to football in any way.

With a clear mutual respect between Des and Robbo as well as a shared love of a cigarette or 20, the evening was a great success raising close to £5,000 for the Cancer Research Centre, topped only by seeing Des join the band on stage for a cover of the Bob Marley Classic “Redemption Song” at the end of the night.

And, of course, we couldn’t let the opportunity pass by without us having photographs taken with the undoubted stars of the show, Robbo and Des, as well as another legend; the High Sheriff of Nottingham.

Paragon Law with Nottingham Forest Legends

 

Paragon Law

Paragon Law New Hires And Promotions

 New hires and promotionsjpeg

From L – R:  Emma Okenyi, Poppy Lockwood, Maaria Mahmood, Decla Palmer, Holly Costema, Charlotte Roberts, Kirin Abbas, Emily Bodden-Burton, Martha Kagusuma, Maria Markopoulou, Yingxiang (Jo) Long.

Paragon Law are delighted to announce that Emma Okenyi, Decla Palmer and Karen Rimmer have commenced training contracts at the firm.

Charlotte Roberts and Jo Long have joined the expanding corporate immigration department as legal caseworkers.

Emily Bodden-Burton has passed the Law Society Level 2 immigration law accreditation and has been promoted to a senior caseworker.  Maaria Mahmood has been promoted to legal secretary in the personal immigration department whilst Holly Costema has been promoted from legal secretary to the finance department.

Maria Markopoulou joins Paragon Law as Trainee Operations Manager with a particular interest in human resources management and manages a team including new apprentice administrators, Poppy Lockwood and Martha Kagusuma.

Kirin Abbas, Paragon Law’s Legal Services Director said, “That each of the new recruits were the outstanding candidates during the recruitment process and those that have been promoted have been done so because of their hard work and because of their shared values with the firm”.  She went on to say, “I am particularly delighted with our strong relationship with the 2 universities in Nottingham with 6 of the recruits coming from the Nottingham universities.  We are not only doing our share to recruit talent into Nottingham but also ensuring that it is retained after graduation”.

Nigeria

Paragon Edge brings together leading British niche immigration law firm Paragon Law and Inside Edge a Nigerian based market entry and education specialist.

The partnership’s foundations are a strong, ethical and knowledgeable team comprising of:

Thalej Vasishta, MD, Paragon Law; and

Peter Stephenson, OBE, ex-First Secretary, British High Commission, Nigeria; and

Lebari Ukpong, MD, Inside Edge and ex-Trade Development Manager, British Deputy High Commission, Nigeria.

Peter Stephenson said, “Obtaining a UK visa is not easy and most Nigerian applicants fail because of poor advice and documentation”.

Paragon Law has won multiple accolades for both its legal services and business processes. The firm is ranked in the top tier by the Legal 500 and Chambers and Partners Directory to the legal profession, with the latter having described Paragon Law as an immigration law powerhouse, best known for handling complex and high profile cases”.

Thalej Vasishta said, “Once we have given our client an assessment of the merits in making the visa application, the secret of success is then in the preparation of the supporting documents, how this evidence is presented and explained to the visa officers”.

Paragon Edge will provide advice on all areas of UK immigration law be it whether a client wants to invest, trade, set up business, study, visit or join family members in the UK.

Inside Edge offices in Lagos will be the point of contact for Nigerian based clients. The UK team will set the case strategy and will be supported by the Lagos office to prepare documents and coordinate effective communication between the client and Paragon Edge.

Lebari Ukpong said, We are all excited about this partnership particularly as the knowledge and know-how with which we will serve our clients is unparalleled in Nigeria. This service is further enhanced by the fact that our clients will continue to be cared for once they are in the UK through Paragon Law”.

If you require further information or wish to instruct Paragon Edge please get in touch with your Paragon Edge contact in the usual way. Alternatively, email info@inside-edgeconsulting.com.

Contacts

Inside Edge Ltd

  • Suite D26, Dolphin Plaza, Corporation Drive, Dolphin Estate, Ikoyi, Lagos, Nigeria
  • Tel: +234 8035352685 / +234 1 4623411 ext 500
  • E: info@inside-edgeconsulting.com

Paragon Law

UK Immigration – The New Focus is Illegal Working and EU Reform

The Queen’s speech, which announces the Government’s agenda for the next 5 years would not be the same without some proposals on immigration reform. We were not let down and the plan of attack will be a new Immigration Bill which will focus on illegal workers, overstayers and rogue employers.

The specific proposals are as follows:

 

  • Further reforms to student visas (details to be announced); and

 

  • There will be further emphasis on others policing the immigration system on behalf of the Government:

 

  • Landlords and Agents

 

The scheme which is being piloted in the West Midlands requiring immigration checks on perspective tenants will be introduced Nationwide.  See here for more information.

 

  • Employers

 

  • There will be a new offence of illegal working, meaning that employees who are working in the UK illegally or working as overstayers could see their wages being confiscated under the Proceeds of Crime Act.Whilst this measure is clearly targeting unscrupulous employers taking advantage of cheap illegal migrant labour, all employers should take note and ensure that you have rigorous checking procedures of “right to work” documents to prevent employees becoming overstayers or working illegally.

 

  • There will be a new Labour Market Enforcement Agency set up to police illegal working and again employers should take note.There will be in my view an increase in unannounced visits and audits by the Home Office of your migrant activity as an employer, particularly if you are Sponsor Licence holder.Civil penalties for employing people without the right to work (currently £20,000) are more likely to be enforced as are suspensions or revocations of the sponsor licence if you are not meeting your sponsorship duties.

 

  • The Bill will also make it illegal for employment agencies to recruit solely from abroad without advertising those jobs in Britain and in English.

 

  • A consultation will be carried out on funding apprenticeship schemes for British and EU workers by implementing a new visa levy on businesses that use foreign labour.There is also a proposal that those employers that recruit “Shortage Occupations” will not be able to do so without providing a plan for skills development in their organisation.

  • Banks

Banks will be required to carry out rigorous checks on bank accounts of people in the UK illegally; and

  • Immigration appeals to be phased out in-country with the principle of “deport first, appeal later” from criminal cases to apply to all immigration cases (exceptions being asylum cases and where it can be proven that it will cause serious harm to deport someone whilst their immigration appeal is pending).

 

 

These measures will be supported with the commencement of negotiation of Britain’s membership of the EU before the country votes on the “in/out” referendum in 2016/17.

 

With EU migration reaching a high of 268,000 in 2014 (201,000 the previous year – see further key migration figures here) the negotiations will focus on curbing immigration to the UK from the EU.  The UK is keen to curb access to Social Security benefits to EU migrants such as time limits before EU migrants are able to access benefits.  Current proposals include that a EU migrant must have worked in the UK for 6 months before being entitled to Job Seekers Allowance and barring access to tax credits for at least 4 years.  Whilst other European countries may be sympathetic to this, however any direct attempt to curb free movement from within the EU will not receive the same support as free movement of capital, business and people are seen as the foundations of The Union.  The government will nonetheless through legislation make it tougher for non-EU spouses to join EU citizens living in the UK through introducing stronger English language tests and maintenance requirements.

 

For further information please contact either Thalej Vasishta – thalejv@paragonlaw.co.uk  or Kirin Abbas – kirina@paragonlaw.co.uk on 0115 9644 123.

 

Whilst the Conservative Government can rely on favourable statistics with regard to their handling of the UK economy the Office of National Statistics (ONS) on immigration to the UK (see figures below) however would suggest that the government has failed in their immigration policy.

 

I would argue that the perceived failure is of the government’s own making for pledging to cut immigration to the tens of thousands (which is now an “aim” as opposed to a “promise”) and which was fanciful and unrealistic.  Matters such as a UK aging population, skills shortages in many sectors of the UK economy (which will take generations or more to rectify) and the fact that there are settled communities in the UK who will always have the need to invite loved ones means that a figures of tens of thousands is not going to be achieved and the government needs to be more honest about this.

 

I did welcome David Cameron’s statement of intent in his speech yesterday where it would appear that there is a shift of focus to “illegal” working and “illegal” immigration.  This will inevitably lead to business owners, employers and landlords contributing to the policing of immigration control in the UK (more about this in the future article). Ultimately it is important that “all” immigration is tarnished with the same brush approach.

 

Business groups have urged the government to be clear that the UK will continue to welcome the brightest and the best from around the world to study at our universities and to contribute through work, investment or entrepreneurship to the UK economy.  In the previous Term this government tarnished our reputation abroad by giving a perception that UK is not welcoming to migrants. This was as a consequence of too much pandering to the UKIP debate and generally tarnishing “all types” of immigration as being damaging to the UK.  Often, statements of Ministers were picked up negatively by overseas media such as India (from where there has been a reduction in international students by 7%) which consequently is bound to have an effect on the other important stated aim to the UK economy – trade and investment with the rest of the world.

 

In a future article I will discuss the specific policy changes which are likely to affect you as an employer or as a business owner who relies on overseas workers.  For now you will see below the key figures from the ONS statistics which have resulted in the knee-jerk reactions:

 

The Key Immigration Figures for 2014 Compared To 2013 at a Glance

 

    2014

 

2013

 

 

Immigration           641,000

 

          526,000

 

Emigration  

 

         323,000            317,000
Net Migration  

 

         318,000              209,000
EU Immigration  

 

         268,000              201,000
Non EU Immigration  

 

         290,000              248,000
Immigration For Work Purposes

 

 

 

         284,000              214,000
Work Related Visa’s Granted

 

 

 

         119,883              108,876
Immigration For Study

 

           193,000              177,000
Immigration To Join Family Members

 

           91,000            71,000
Asylum Applications

 

           25,020          23,803