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.

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”.

Human Key - right2rentThe government has announced today that from 1 February 2016, all private landlords in England will have to check new tenants have the right to be in the UK before renting out their property. This is a further roll-out of the Right to Rent scheme introduced by the Immigration Act 2014, the first phase of which has been piloted in the West Midlands since December 2014. The Home Office have now published their review of the pilot and this can be seen here.

Under Right to Rent, landlords must check identity documents for all new tenants (with some exceptions) including lodgers, take copies and store them for future reference. The Home Office claim that “the scheme has been designed to make it straightforward for people to give evidence of their right to rent and a range of commonly used documents can be used”. Others argue that the range of documents which can be used, alongside their lack of experience in this field, make this a far from straightforward process.

What is certain though, is that the penalties for not complying with these rules can be tough. Currently civil fines up to £3,000 per tenant are in place and the Immigration Bill 2015-2016, which is currently before Parliament, proposes criminal sanctions including prison for those who breach the rules.

Immigration Minister, James Brokenshire claims:

The government’s new Immigration Bill builds on the reforms in last year’s Act, making it harder for people to live and work in the UK illegally. The Bill proposes new measures to make it easier for landlords to evict illegal tenants as well as a new criminal offence targeted at unscrupulous landlords who repeatedly fail to carry out right to rent checks.”

In response Mark Lilley-Tams, an immigration law solicitor at Paragon Law, said:Mark Lilley-Tams

“Evidencing the right to be in the UK is a difficult process given the wide array of different documents available to prove this and landlords are generally not experts on immigration law. Delays in proving the right to rent can be expensive and time consuming for landlords and that is before you factor in the risk of civil fines, imprisonment and even uncapped discrimination claims if they make a mistake or fail to correctly store the documents they rely upon.

To assist landlords and letting agents we have introduced our Right2Rent service which allows us to take on legal responsibility for carrying out these checks and storing documentation. The feedback we have from the pilot area is that landlords really do not feel comfortable with this added responsibility of carrying out immigration checks and the threat of criminal sanctions will not make this burden any easier.”

The Right to Rent scheme was given legal status by the Immigration Act 2014. Some of the additional powers required to toughen up the government’s approach to enforcement of the scheme are within the Immigration Bill which is currently being debated in Parliament. The progress of this bill can be viewed here.

Further information on Paragon Law’s Right2Rent scheme can be seen at www.right2rent.co.uk

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

Travel to India

15 August 2015 will be India’s Independence Day and the same day that UK and 35 other countries will be eligible for the Indian e-tourist visa (eTV).

 

The other countries being added to the existing list include Andorra, Argentina, Armenia, Aruba, Belgium, Bolivia, Colombia, Cuba, East Timor, Guatemala, Hungary, Ireland, Jamaica, Malaysia, Malta, Mongolia, Monaco, Mozambique, the Netherlands, Panama, Peru, Poland, Portugal, Seychelles, Slovenia, Spain, St Lucia, St Vincent & the Grenadines, Suriname, Sweden, Taiwan, Tanzania, Turks & Caicos Islands,  Uruguay and Venezuela.

 

Those who intend to travel to India for no more than 30 days for the purposes of recreation, site-seeing, visiting friends or family, medical treatment or business can apply for an eTV.

 

Each applicant must have their own passport (with at least 6 months validity and 2 blank pages), have a return ticket and evidence of sufficient funds for the duration of their stay in India.

 

The cost of the eTV is US $60 per applicant which is paid online at the time when you apply for your eTV. You are able to apply 4 days before you travel and have 30 days within which to present yourself at the port in India after the eTV has been issued. It should also be noted that you can only apply for the eTV for a maximum of 2 visits in a calendar year and that on each occasion the eTV will be valid for a single entry only.

 

You must present yourself with the printed eTV (and your passport) to designated airports. From 15 August 2015 there will be a choice of 16 airports to travel to under the eTV.

 

For further information and how to apply please go to the following link: https://indianvisaonline.gov.in/visa/tvoa.html.

 

For further information on business and employment visas for India please feel free to contact me at thalejv@paragonlaw.co.uk.

Royal Courts of Justice

Firstly, this is part of the strategy to cut net migration. By radically changing and indeed reducing appeal rights the Government hopes that it will reduce illegal immigration. The Government says that:

The main benefits of these clauses [in the new Immigration Act] would be dealing with those who should not be here, by rooting out illegal immigrants and boosting removals and deportations”

 

The first measure set to root out illegal immigrants and crack down on those slipping through the ever more widely cast net is the measure to satellite track all illegal offenders subject to an outstanding deportation order or deportation proceedings. This would appear to be a draconian measure and a step up from the current use of electronic monitoring of which Home Office guidance clearly states that “tagging is not tracking”. Violations of the current monitoring system result in detention. It is likely that this would still be the case in breaches of tracking procedures. However, the most profound impact on immigration will stem from the changes of the appeal process.

As at 30th June 2015, according to James Brokenshire, Minister for Immigration, the figures at the Home Office show that more than 1,000 people have been removed under the tough new provisions since they came into force last year.

Many foreign national offenders have already felt the full force of the changes to appeal rights, following the introduction of “deport first, appeal later” measures being introduced in relation to deportation matters from July 2014, but, as part of the Queens’ Speech, Mr Cameron announced that the cuts to appeal rights would be extended to all immigrants. As such, all immigration appeals and judicial reviews will be subject to “deport first, appeal later” measures. It does not apply to asylum claims (it is stated that it will not apply where such measures will cause serious harm), but family life appeals are included and specifically targeted, with the Conservative Manifesto referring to the appeals as a “spurious legal challenge and opportunities to abscond

Essentially, what this means is that Appellants will find that their appeal progresses through the court service whilst they are outside of the UK. Removal will take place notwithstanding an outstanding appeal. The appeal will be listed and directions given, Case Management Review Hearings will be heard and evidence compiled, all whilst Appellants remain in their country of origin.

No indications are given for how the UK will satisfy its obligations under Article 6 – the right to a fair trial. Article 6 of the European Convention on Human Rights states

In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law….”

The Government is of the opinion that there is no reason why Appellants need to give their evidence in person where they have already considered the claim substantively on paper before removal. Seemingly, however, deporting or removing a person who is claiming that such action breaches their human rights without giving them access to courts first for an independent review by a Judge would appear in breach of this important right.

A recent test case from 24th June 2015 saw a successful challenge in the Court of Appeal on the basis of access to justice and representation. Lord Dyson and Lord Underhill who heard the case indicated that many other challenges were pending behind the outcome of that case. They agreed that an inability to access facilities to provide evidence at a hearing from outside the UK might prove detrimental to the Appellant’s case. This leaves such challenges open to other litigants.

In EEA cases of foreign national offenders presently, it is open to an Appellant who has been deported from the UK to apply from outside the UK for permission to be temporarily admitted to the UK solely for the purpose of making submissions in person at their appeal hearing (Regulation 24AA). The reconciliation with Article 6 in EEA cases as it stands is that the risk of serious harm will already have been considered and discounted by the Secretary of State prior to removal action taking place.

It would appear that, in order to be able to justify such action, the Government will have to believe that a case is clearly unfounded or that serious harm will not be caused by the deportation action proceeding, and will certify an Appellant’s rights.

To be clearly unfounded, a claim must be so clearly without substance that it is bound to fail. Further, it is possible for a claim to be manifestly unfounded even if it takes more than a cursory look at the evidence to come to a view that there is nothing of substance in it. Certification is not normally exercised in cases involving British children but families relocating as an intact unit will face more and more difficulties in avoiding such action. In such cases involving the children, the Government will have to demonstrate that they are satisfied that serious harm will not ensue, for either the Appellant, or the British partner and children, as a result of the proposed action. Giving evidence early in the case will assist aid the Government to make the assessment.

There does, of course, remain the last resort option of Judicial Review action. It is possible to make an application to the Upper Tier of the Tribunal to judicially review the Secretary of State’s decision to certify the human rights claim that will result from the examination of whether the action will cause “serious harm”. Such applications are a long and arduous process and will leave many applicants in a state of limbo for months at a time, causing applicants uncertainty and an inevitable waste of public funds and court time. Further, the cuts to legal aid mean that most applicants go unrepresented leaving them with a sense of unease at understanding the minefield of jargon and strict legal processes involved.

If you, your family or your client are facing problems as described here ie, the potential of being removed, it is important to receive advice and representation as soon as possible. Paragon Law have a dedicated human rights and family immigration team that can assist. Contact Karen Rimmer at karenr@paragonlaw.co.uk if you need assistance.

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New Government proposals announced on the 02 August 2015 include imprisonment of Landlords for a period of up to 5 years, where they repeatedly fail to comply with the new ‘right to rent’ scheme.

Associate Solicitor, Mark Lilley-Tams, explains in greater detail the proposed changes and how Right2Rent can assist tenants, landlords and letting agents to avoid the pitfalls of these new requirements.

Please visit http://www.right2rent.co.uk/landlords-face-imprisonment-if-new-right-to-rent-rules-not-followed/ to find out more or email markl@paragonlaw.co.uk

 

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The Immigration Health Surcharge

Since 6 April 2015, most migrants seeking to enter or extend their stay in the UK must pay the Immigration Health Surcharge. The charge, which is one of a number of reforms contained in the Immigration Act 2014, is intended to be a financial contribution by migrants to the cost of their healthcare whilst in the UK. It has been set at £200 per year for those coming to work or join family members and £150 per year for students.

The surcharge must be paid by most people applying for limited leave and includes main applicants and dependents alike.  Visitors and those applying for indefinite leave are not required to pay nor are EEA nationals and their family members who are exercising rights of residence in the UK.

Having paid the surcharge, those migrants living in the UK will have the same access to the NHS as permanent residents.

Why has it come about?

According to the Home Office consultation paper which ushered in the reforms, the rules regulating migrant access to the NHS were too generous, particularly when compared with wider international practice, and have acted as a draw card to health tourists.

Countries such as Australia and the USA do require student and working migrants to purchase health insurance for the duration of their stay.  The government argues that the UK will not lose its competitive edge in this regard as private health insurance is much more costly than the surcharge and would also not cover pre-existing and chronic conditions.

The charge is also intended to remove some of the uncertainty over access to treatment which has been a difficult issue faced by health professionals who must decide who pays for treatment at the point of use.

Critics of the scheme claim that the government lacks figures about the actual costs that migration adds to the NHS and that working migrants who pay tax and national insurance contributions will effectively be paying twice for their access to healthcare. There is also some question as to whether health tourism will be curbed by the measures which do not apply to visitor visas.

How does it work?

The Immigration (Health Charge) Order 2015 specifies who pays the surcharge, when it is to paid, the consequences of non-payment and includes the various exemptions.

The charge must be paid at the time of applying for leave and the amount payable is based on the maximum period of time for which permission could be granted under the relevant application route. For family members applying under Appendix FM the period will commonly be 2 ½ years. A student undertaking a one year course may have to pay for 1 ½ years which reflects the maximum length of leave (17 months) that may be granted in that instance.

Users of the Visa4UK website will now find that the process of calculating and paying for the surcharge has been integrated into the main online application process. For paper-based applications, however, the surcharge must be paid separately using the Immigration Health Surcharge online portal. This will generate an IHS number which must be written on the front page of the application form. Applicants who do not pay the charge before submitting their application will receive a request for payment rather than having applications returned as invalid.

The surcharge is refunded when an application for leave is refused and in circumstances where there is an overlap of payment in consecutive periods of leave. The surcharge is not, however, refunded if leave is curtailed or if it is simply not taken up having been granted.

Exemptions and Examples

Most notable among the various exemptions contained in Schedule 2 of the 2015 Order are: Tier 2 (Intra-Company Transfer) applicants, those seeking asylum or humanitarian protection and nationals of Australia and New Zealand.

All entry clearance applications for periods of 6 months or less are exempt from the charge as are visitors applying under Appendix V of the Immigration Rules.

Some of those exempt from the charge will have full access to health care such as refugees and those from Australia and New Zealand (which have reciprocal agreements with the UK). Visitors, however, will be required to pay if they receive treatment from the NHS.  It is advisable that visitors arrange private insurance for the duration of their trip.

The Intra-Company Transfer exemption makes this Tier 2 vehicle an even more attractive option for employers. A family of 4 coming to the UK under Tier 2(ICT) for 4 years will save a total of £3,200 compared to a non-ICT sponsored employee and family coming for the same period.

The surcharge adds a further financial burden to family members seeking to enter or remain in the UK. For example, a parent with two dependent children who applies for leave to remain for a period 2 ½ years will now need to pay a total of £3,447 in application and surcharge fees. For many this will be prohibitive. Where issues of human rights arise, there is scope to challenge a surcharge fee if it would prevent the effective consideration of those issues.

Conclusion

The additional cost burden that the Immigration Health Surcharge creates is significant and will no doubt have an impact on the full spectrum of immigration applications in the UK. It is yet to be seen whether the charge will resolve the difficult question of who should have access to the NHS and how that should be managed.

For further information contact Nigel Smith, nigels@paragonlaw.co.uk.

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.