Tier 2 Overseas Criminal Record Certificates

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.

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