Author: Adarsh Girijadevi

Brexit: Businesses warn over ‘UK workers first’ proposal

Under the draft plan, leaked to the Guardian, firms would have to recruit locally unless they could prove an “economic need” to employ EU citizens.They could face a skills tax to boost training of UK workers if they still chose to employ unskilled EU staff.But business groups say a “sudden” cut could cause “massive disruption”.

The National Farmers’ Union claimed the “entire food supply chain” could be threatened.The leaked Home Office document has not been signed off by ministers, who will set out their post-Brexit migration plans later this year.But Defence Secretary Michael Fallon said: “The public voted to leave the European Union. That means freedom of movement has to end.”

He said “people with the right skills” would still be “welcome”.But he added: “Equally we have to make sure that British companies are also prepared to train up British workers.

Full story can be read here.

UK gov departments will share digital records to clamp down on immigration

Three government departments will share their data on citizens to develop a digital immigration system after Brexit, improving the prospects of both those coming into the country and existing UK residents.

Home Office, HM Revenue & Customs and the Department of Work and Pensions (DWP) will share the information they hold and introduce a system to make it easier for employers and public service departments to check immigrants’ identities, according to an anonymous source who revealed the documents to the Guardian.The document, called Border, Immigration and Citizenship System After the UK Leaves the European Union, will apparently be “as digital, flexible and frictionless for individuals and employers as possible.”

It includes a portal where employers and any other party that needs to find out information about those entering the country can check an individual’s immigration status and “take action where necessary.” The portal will link together all the information about each person, including their tax records, benefit status and other records in a fully digitized way. The report also goes into detail about other plans when the UK exits the EU, including employment restrictions on those who come to the UK from other countries in the EU, saying it will give preference in the job market to resident workers. EU nationals would be restricted from seeking work and reduce the opportunities for workers looking to settle in the UK for long periods of time.

We are clear that, wherever possible, UK employers should look to meet their labour needs from resident labour. It is now more important than ever that we have the right skills domestically to build a strong and competitive economy,” the paper said.The government also plans to scrap the rights for extended family members being able to reside in the UK. “We propose to define family members as direct family members only, plus durable partners,” the report said. For a spouse to be allowed entry, the UK resident must be earning a minimum of £18,000 a year.

“Put plainly, this means that, to be considered valuable to the country as a whole, immigration should benefit not just the migrants themselves but also make existing residents better off,” the report finished. The proposals are an attempt to address net migration, which the government aims to cut from 250,000 annually, down to “sustainable levels” in the tens of thousands.

EU immigration offer could lead to Brexit reversal, claims Adonis

The decision of the British people to leave the European Union could be reversed next year if France and Germany agree that the UK can take control over immigration while staying in the EU single market, the former Labour cabinet minister Lord Adonis said on Sunday.With concern over the government’s handling of Brexit growing ahead of a key parliamentary vote on Monday, the peer said Angela Merkel, who is expected to be re-elected as German chancellor later this month, and French president Emmanuel Macron could well make such an offer if they believe it could mean the UK remaining in the EU.

Writing in the Observer, Adonis said he believes a majority of peers in the House of Lords will support an amendment to the EU withdrawal bill – now passing through the Commons – requiring another referendum before Brexit takes effect, with the options being to accept the deal on offer, or stay in the EU.Such an amendment for another national vote, Adonis said, would stand a good chance of being passed by the House of Commons because Labour would by then have reason to support it, and sufficient pro-EU Tories would also rally behind it, he argues.

“The interplay between a referendum and such a Merkel-Macron ‘offer’ will be vital,” he writes. “If it is clear by next summer that Britain is going to hold a referendum, then the incentive for them to make a bold offer greatly increases.”He adds: “A lot depends upon whether the alternative is the status quo – or EU membership without freedom of movement in respect of right to work and right to reside for all EU nationals. If Chancellor Merkel and President Macron make an offer, probably over the heads of the British government, for the UK to stay in the economic institutions of the EU but with national control over immigration, then I believe the referendum can be won.

“Why might Macron and Merkel make this offer? Partly because – in Macron’s case – he (rightly) doesn’t believe that unrestricted free movement of labour is integral to the single market. Partly because many other EU leaders agree with him. And partly for the big strategic reason – which weighs on strategic thinkers in Berlin – that, if Britain leaves the EU, 80% of Nato resources will then be outside the EU, which is hardly a recipe for European security and stability if you are looking across at the Russian and Chinese bears.”While Theresa May is expected to avoid any significant Tory rebellion over the EU withdrawal bill at the second reading stage on Monday, there is growing concern among MPs of all parties at the prime minister’s plan to leave the single market and customs union, and the lack of progress in negotiations with Brussels. On Sunday around 30,000 people marched on Westminster demanding that the UK stays in the EU.

Adonis’s intervention also comes amid signs that opponents of a hard Brexit in all the main parties are ready to work together to amend the bill, both to ensure that the option of staying inside the single market is kept open, and that parliament, at the very least, has a binding vote on the final deal before Brexit happens in March 2019. The Observer understands that meetings about how to thwart a hard Brexit have already taken place between senior Labour figures, the Liberal Democrats and Scottish Nationalist party MPs and pro-EU Tories.

Full story can be read here.

Britain could remain under direct control of European court for years

Britain could remain under the direct control of the European court of justice for years after Brexit, it has emerged, and still be forced to implement the court’s rulings on vexed issues such as immigration.

The expanding scale of the prime minister’s climbdown over her promise to “take back control of British law” was revealed as the government published its latest position paper on dispute resolution before the next round of Brexit talks.While stressing that the range of options it contains are hypothetical, the government outlines only scenarios in which “direct” ECJ authority is eventually replaced by a new court or committee over which Europe maintains “indirect” control.

It has also become clear that the UK government is now open to preserving the direct authority of the ECJ throughout the interim transition period after March 2019 – during which it is expected to spend years negotiating a new trade agreement. News of the government’s evolving position has led to a growing political stormthis week, with Tory Brexit supporters claiming Theresa May is abandoning the hardline position she set out in last year’s Conservative party conference speech and in a speech at Lancaster House in January.

European determination to use the ECJ to protect the rights of its citizens and companies after Brexit is forcing the UK into a corner and threatens to derail talks in Brussels before the British negotiator, David Davis, can switch the discussion on to trade and future relations.

Speaking during a visit to Guildford, the prime minister said: “What is absolutely clear, when we leave the European Union we will be leaving the jurisdiction of the European court of justice. Parliament will make our laws. It is British judges who will interpret those laws and it will be the British supreme court that will be the arbiter of those laws.” The UK government is, however, prepared to enter negotiations about the role of the ECJ during the interim implementation phase that it admitted last week was necessary to negotiate new customs and trade relations. It is understood this may involve maintaining direct control for a limited period.

In the long run, the government draws a distinction between enforcement mechanisms and dispute resolution once the new Brexit agreement is in effect, arguing that individual complaints can be dealt with solely by UK courts and only government disputes escalated to the new arbitration body. However, test cases involving individuals appealing against unfair treatment by, for example, UK immigration authorities may quickly escalate into a dispute over the interpretation of the whole agreement, potentially allowing the ECJ to step in on behalf of aggrieved EU citizens.

The government insists there remains a meaningful difference between direct and indirect control, although it concedes that in some of the scenarios it outlines – such as in an agreement between the EU and Moldova – there may be little practical option but to agree to rulings from the ECJ or else see the whole agreement fall apart. It argues arbitration courts and committees are standard practice for the EU though and need not involve a direct role for the ECJ over national law in the first instance.

Sir Paul Jenkins QC, a former head of the government’s legal department, said the government paper contemplated a legal solution similar to that adopted by Efta (the European Free Trade Association), which has its own non-binding court. He tweeted: “If only those of us who predicted an Eefta-like solution a year ago had put money on it.”

Other legal commentators viewed proposals for “voluntary references” to the ECJ to interpret EU rules as a significant softening of the government’s red line over judicial independence in its Brexit negotiating position. The proposals were welcomed by Gunnar Beck, a barrister and EU constitutional law expert who also works for the thinktank Policy Exchange’s Judicial Power Project, which has adopted a pro-Brexit position. He said: “Today’s paper sets out an interesting and intelligent starting vision of future cooperation between UK and EU which more closely resembles other agreements between sovereign states rather than subjection to the European legal order.”

Mathew Rea, a partner at the law firm Bryan Cave, said: “This is a clear backtrack on the government’s previous stance that the ECJ would be a red line in the Brexit negotiations and that there could be no future role whatsoever for the ECJ post-Brexit.”

Changes to Spouse Visa income requirements.

Following the landmark Supreme Court decision in the case of R (on the application of MM (Lebanon)) v Secretary of State for the Home Department in February 2017, although the judges upheld in principle the Minimum Income Rule, which requires an income of at least £18,600 for British citizens and others to sponsor a foreign partner, the decision did offer a glimmer of hope for the countless number of couples who, although in possession of sufficient funds, cannot meet the onerous rules with regard to the source of the income. The judgment refers to the fact that 30,000 spouse applications were refused between 2012 and 2014 and only 26 were referred for further consideration outside of the Immigration Rules, relying instead on Article 8 human rights grounds.

The court did however rule that the Minimum Income Rule was unlawful in failing to protect children and failing to take account of other sources of income not permitted under the immigration rules.

For example, in the case of British citizens who are not in active employment, perhaps through child care commitments or study, unless these individuals can provide evidence of savings of at least £62,500, their foreign national partner will not be able to meet the minimum income requirement in an application for entry clearance, even if said partner is earning in excess of £18,600.

Viewers of the May/Corbyn Q and A session hosted by the BBC a few days prior to the General Election on 8 June 2017 might recall listening to the plight of a young member of the audience, pleading for these rules to be softened. She recounted how she had met her husband at university in the UK, fell in love and married, only to then have to immediately separate and conduct a long distance marriage once his studies ended, so that they could amass the necessary £62,500 in savings, which has to be held for six months!

So, what is this glimmer of hope offered by the esteemed Supreme Court judges? An opportunity for the government to amend this unfair rule to permit the income of the foreign partner to be taken into account you might think! Alas not so.

The government published its latest Statement of Changes on 20 July 2017 with the stated intention on giving effect to the decision in MM. The main provisions are:

  • new general provisions which require the decision-maker, in the circumstances specified, to consider whether the minimum income requirement is met if the other sources of income, financial support or funds set out in the new paragraph 21A of Appendix FM-SE are taken into account. The specified circumstances are that, firstly, the minimum income requirement is not otherwise met and, secondly, it is evident from the information provided by the applicant that there are exceptional circumstances which could render refusal of the application a breach of Article 8, because it could result in unjustifiably harsh consequences for the applicant, their partner or a child under the age of 18 years, whom it is evident would be affected by a decision to refuse the application.
  • Paragraph 21A of Appendix FM makes provision as to the other sources of financial support which the decision-maker will take into account in such cases. These are: a credible guarantee of sustainable financial support from a third party; credible prospective earnings from the sustainable employment or self-employment of the applicant or their partner; or any other credible and reliable source of income or funds available to the couple. Paragraph 21A also makes provision for particular factors which the decision-maker will consider in determining the genuineness, credibility and reliability of such other source of income, financial support or funds.
  • A requirement that the decision-maker, when an application does not meet the requirements of the rules, goes on to consider on the basis of the information provided by the applicant, whether there are exceptional circumstances which would render refusal of the application a breach of Article 8 because it would result in unjustifiably harsh consequences for the applicant or their family.
  • A requirement for the decision-maker, in considering an application under the new general provisions, to have regard, as a primary consideration, to the best interests of any child affected by the decision.
  • A stipulation that grants of visas under these new general provisions will put applicants on the 10-year route to settlement, with scope to apply later to enter the five-year route where they subsequently meet the requirements.
  • Measures to ensure that a child is granted leave of the same duration and subject to the same conditions as their parent, who is or has been granted leave under these rules.
  • Measures to ensure that the partner of a person with refugee status or enjoying humanitarian protection cannot qualify for indefinite leave to remain before their partner does.

It is hard to conceive of circumstances which are not exceptional when considering the enforced separation of a family. No doubt these rules will give rise to a substantial body of case-law to decide where the line should be drawn and most cases will inevitably be decided on their facts. It is regrettable that the government does not define ‘unjustifiably harsh’ consequences, which means that applicants will have to amass strong evidence in support of their application in the hope that it meets the unknown threshold of harshness in order to engage Article 8.

Where there are children involved, it is most likely that Article 8 will be engaged, in order to meet the requirement to ensure the best interests of the child are served.

Not only do these rules impact British citizens but also those with indefinite leave to remain (ILR) in the UK. Following Brexit, EU citizens will have to apply for ILR in order to secure ongoing rights to remain in the UK. They will also be subject to the Minimum Income Rule should they wish to bring family members to the UK. Until now EU citizens have been able to bring their non-EU family members to the UK by meeting a considerably lower income threshold.

Certainly the immigration rules continue to throw up challenges for couples and their children to get on with their lives in the UK and no doubt the EU dimension will engender further complexity.

UK-EU freedom of movement to end in March 2019

Freedom of movement will end as soon as Britain leaves the EU, the immigration minister has said, as the government prepares a survey on the benefits of migration from the bloc.

Brandon Lewis also confirmed that the government intended to reduce net immigration to the tens of thousands – a promise the Conservatives have failed to keep since taking office in 2010 – though he refused to say it would be achieved within this parliament.“Free movement of labour ends when we leave the European Union in the spring of 2019. I’ll be very clear about that,” Lewis told BBC Radio 4’s Today programme on Thursday.

“Obviously, there’s a period of negotiation we’re going through with the European Union at the moment. But we’re very clear that free movement ends. It’s part of the four key principles of the European Union. When we leave, that, by definition, ends,” Lewis said.His comments appear to run counter to recent reports that the government is willing to allow freedom of movement to continue during a transitional period lasting three or four years.

The remarks are likely to alarm businesses, which would have less than two years to prepare for an end to free movement of labour with the EU. However, it could be that while freedom of movement technically ends with Brexit, the arrangements are still replicated during an implementation phase.

In a sign this may be the case, Lewis reiterated the Conservatives’ commitment to reducing net immigration to a less than 100,000 people a year, but he refused to say it would be met by the end of the parliament, claiming that it was impossible to do so while freedom of movement remained.

 

Court rules in favour of non-EU parents having a right to live in Europe

An interesting judgment has been handed down by the Court of Justice of the European Union (“CJEU”), which rules in favour of a non-EU parent’s right to reside in an EU country if his or her child is an EU citizen of that EU country.

The judgment

This judgment (Chavez-Vilchez) clarifies the position in a previous decision made on Zambrano children. The principle from the Zambrano case is that Member States are precluded from refusing a non-EU parent (with a dependent EU child) a right of residence in the Member State of residence and nationality of that child.

This legal principle has been whittled down over the years to the extent that immigration authorities are now prepared to expel non-EU parents so long as there is an EU parent (who is a citizen of the Member State) who can look after the EU child in that Member State. Incredibly, the interpretation has been taken so far that it would still be the case even if the EU parent does not want to take care of the EU child. As many immigration authorities (including the UK) have adopted such legal interpretations, the Chavez-Vilchez’s decision now realigns the interpretation of a non-EU parent’s right of residence in that EU country where the child is a citizen.

The case involves a Venezuelan mother who traveled to Europe on a tourist visa and had a relationship with a Dutch national. She ended up staying and subsequently gave birth to their Dutch child. The Venezuelan mother separated from the Dutch father and became solely responsible for the child’s care. She came into difficulty when she was refused social welfare benefits as it was decided that she did not have a right of residence in the Netherlands and would need to leave. This decision would ultimately mean the child would have to leave with the Venezuelan mother. As such, the question arose as to what is ‘the genuine enjoyment of the substance of EU children’s citizenship rights’.

What is ‘the genuine enjoyment of the substance of the rights of European citizens’?

In the Chavez-Vilchez case, the CJEU held that it was the Member States’ responsibility to assess whether the EU citizen child is genuinely dependent on the non-EU parent. The fact that the other EU parent is actually able and willing to assume the role of sole responsibility for the primary day-to-day care of the child is only a relevant factor. It is not a sufficient ground to conclude that the dependency relationship of the child and non-EU parent is not such as to compel the child to leave the EU if that parent was expelled. Therefore, even if there is an EU parent who might be able to care for the child, the key is still and always the dependency relationship of the child with the non-EU parent. If such dependency exists, then the non-EU parent has a right of residence (and to social benefits) and the Member State must consider the right to respect for family life under Article 7 EU Charter of Fundamental Rights.

For non-EU parents who are living in the UK with children who are UK citizens (and also EU citizens), this judgment reaffirms the importance of respecting ‘the genuine enjoyment of the substance of rights of EU citizens’, which includes UK citizen children. This right cannot be easily displaced and the authorities are obliged to take the best interests of the child into account as the main factor in any decision which they make regarding the residence status of the child’s parents. If the child is dependent on the non-EU parent then the fact that there might be another EU citizen parent available to care for the child will not displace the child’s right to live with the parent on which it is dependent and, in turn, the non-EU parent would have a right of residence and a right to claim to social benefits, including child benefit.

Further information

Should you have any questions about the status of children born to European nationals, or any British citizenship or permanent residence query, please contact City Legal Services on 020 3695 4626.

Why you might not have to pay a fine for illegal workers

The Home Office is continuing in its highly stringent approach to illegal employment enforcement. For employers, failure to meet your UK immigration compliance duties can result in a fine for illegal workers. Immigration breaches are more common than you may think. They can result from a number of areas, including what may seem relatively minor administrative errors or oversights. If your organisation receives a civil penalty notice for illegal working, after the initial panic, you may be wondering what to do next.

What is a civil penalty for illegal working?

A civil penalty notice informs an organisation it has employed a person who did not have permission to work in the UK, in breach of section 15 of the Immigration, Asylum and Nationality Act 2006. The civil penalty regime exists to ensure employers of migrant workers are compliant with immigration rules and that all their personnel have the relevant permissions to work in the UK. The civil penalty regime applies equally to all employers of migrant workers, catching out both employers who choose to ignore their obligations as well as more diligent employers who ‘unknowingly’ hire illegal personnel, for example because of a flaw in their on boarding processes.

You’ve received notice of a fine for illegal workers – what should you do next?

If your organisation has received a fine for illegal workers, your next steps are vitally important. You must now follow the process with regards to either accepting and paying the fine, or challenging the penalty. Either way, you are under time pressure to make a decision and take action – you have only 28 days to pay the fine or to appeal to the Home Office by returning an objection form. As you would expect, the Home Office encourages employers to accept fines. Payment plans can be arranged and if full payment is received within 21 days of the notice, the organisation will receive a 30% discount.

However – an employer who receives a civil penalty for immigration has the opportunity to object to the notice by providing further evidence. Compared with settling, the objection process may at first appear risky and not worth the hassle and expense. The main consideration is that challenging a civil penalty can result in the Home Office increasing the original level of fine. You need to be confident there are no grounds to justify an increase in the level of penalty. But there a number of benefits to challenging a civil penalty.

The levels of fines are considerable – up to £20,000 per illegal worker. And the reputational hit of being found to have employed illegal workers is damaging. Employers should also bear in mind that accepting a fine carries other ramifications such as potential impact on future Home Office applications. As such, it is always worth considering the strength of your potential defense against a fine for illegal working.

Do you have to pay the fine for illegal workers?

You need to appraise the merit of UKVI’s case against you.

In some circumstances, where the evidence against you and in support of the breach is overwhelming or indisputable, you may well be best advised to accept and pay. In these instances, you must also ensure you take the learnings from the cause of the breach, and adjust your systems accordingly.

You will now be on the Home Office radar, and more likely to be singled out for an unannounced site visit at a future date to ensure you have undertaken and maintained compliant procedures. If you do decide to proceed with challenging the civil penalty for illegal employment, you must follow the prescribed steps to present a challenge. This includes building a defense based on specific grounds which include:

  • No proof of the offence You are not liable because you did not employ an illegal worker. The Home Office must provide sufficient evidence to prove a person did not have the appropriate right to work in the UK and that a business employed that person. A valid defence may simply be that it has failed to do so.
  • The due diligence excuse You performed the required document checks on the illegal employee and therefore have a statutory excuse. You are excused from paying a civil penalty UK immigration notice if you can show you have complied with the ‘prescribed requirements’ in relation to the employment by producing the relevant documents.
  • Statutory mitigating factors The penalty is too high because mitigating factors were not properly taken into account.
  • The Home Office has exceeded its powers It may be that the Home Office has obtained evidence unfairly or in excess of its statutory powers.
  • Other mitigating factors A broader interpretation of the wording in the Act suggests the Home Office should consider all relevant factors and determine whether it is appropriate to issue a penalty at all, rather than take into account only those considerations specifically contained in the Home Office guidelines.

If your written appeal is rejected, the next stage is to make a further objection to the County Court. You have to do this within 28 days of the Home Office’s final decision. This will lead to a rehearing, where the court can look at any documentation it considers relevant, including documents not considered by UKVI, although the majority of challenges tend to settle ahead of a hearing.

Make the right move

Given what is at stake, all civil penalties should be taken seriously. If a business decides to object or appeal a decision, these applications must be well prepared, with detailed submissions and supporting evidence. The expense, time and energy required to object and appeal a decision can seem excessive, but if a business receives a civil penalty UK immigration notice, there are significant consequences and many reasons to appeal a civil penalty for immigration.

Labour immigration plan suggests ‘mix of visas and work permits’ for EU workers

Labour has outlined its vision for immigration controls after Brexit, suggesting migration could be controlled by a “tailored mix” of work permits, visas and employer sponsorship. The party’s manifesto says it “will not discriminate between people of different races or creeds” but that “freedom of movement will end when we leave the European Union” and “Britain’s immigration system will change”. The party says a Labour government would work “with businesses, trade unions, devolved governments and others to identify specific labour and skill shortages” and set policy accordingly.

“Whatever our trade arrangements, we will need new migration management systems, transparent and fair to everybody. Working with businesses, trade unions, devolved governments and others to identify specific labour and skill shortages,” the document, unveiled by Jeremy Corbyn in Bradford on Tuesday, says. “Working together we will institute a new system which is based on our economic needs, balancing controls and existing entitlements. This may include employer sponsorship, work permits, visa regulations or a tailored mix of all these which works for the many, not the few.”

The system would also “distinguish between migrant labour and family attachment”, the party says. In addition to the new framework, Labour says it will protect EU citizens who are already here, end indefinite immigration detention, and scrap the income threshold for bringing foreign spouses in the country.  Mr Corbyn said: “Only Labour has a plan to make Brexit work for ordinary people.  We are clear:  The choice is now a Labour Brexit that puts jobs first, or a Tory Brexit that will be geared to the interests of the City, and will risk making Britain a low-wage tax haven.

“As we leave the European Union, because that is what the people have voted for, only Labour will negotiate a deal that preserves jobs and access to the single market, preserves rights and does not plunge our country into a race to the bottom.” The Conservatives are expected to unveil their plans for the immigration system in their manifesto, which is due to be launched this week.

Theresa May has said Britain will have “control” of its borders and that free movement will end. Downing Street has ruled out the points-based immigration system promised by Leave campaigners but given no further details.

Immigration Skills Charge – 5 key points which employers need to know

 We are setting out the 5 key points that employers need to be aware of.

1. What is an ISC?

The much anticipated ISC came into effect on 6 April 2017 and is levied on employers that employ migrants in skilled roles. It is designed to cut down on the number of businesses taking on migrant workers and for the funds raised to be used to address the skills gap within the domestic workforce; although the precise details of what this would entail are yet to be revealed.

The ISC must be paid if the worker is applying for a visa to work in the UK for 6 months or more under either a Tier 2 (General) visa or a Tier 2 (Intra-company Transfer) visa. If the worker has applied for their visa from within the UK the employer must pay the charge even if the worker is applying for less than 6 months.

2. Are there any exceptions?

An employer will not need to pay the ISC if the worker being sponsored:

  • has a Tier 4 (Student) visa and is switching to a Tier 2 (General) visa;
  • has a Tier 2 (Intra-company Transfer) Graduate Trainee visa;
  • will do a job with a PhD level standard occupational classification (SOC) Code;
  • has a certificate of sponsorship which was assigned before 6 April 2017; and
  • is an to existing Tier 2 worker already in the UK before 6 April 2017 who is subsequently wanting to extend their Tier 2 stay, or change job or employer.

An employer will also not be required to pay the ISC for any of the worker’s dependants, for example their partner or child.

3. How much will employers need to pay?

The ISC is set at £1,000 per worker per year for large employers, with a reduced rate of £364 for small or charitable organisations. For Home Office purposes, an organisation is regarded as a large employer if its annual turnover is in excess of £10.2 million, or if it has more than 50 employees.

The whole charge is payable upfront by the employer at the point of issue of the certificate of sponsorship, and the charge cannot be passed on to the worker. It should therefore be excluded from any claw back provisions in a migrant’s contract. This was not something which was made clear prior to the guidance being issued in April 2017.

4. If the circumstances change, can the ISC be refunded?

Employers are able to obtain a full or partial refund in prescribed circumstances:

  • Full refund – where a migrant has a visa application refused or where the application is withdrawn; and
  • Partial refund – where a migrant leaves the job early, they start work but then change to another sponsor, or they receive less time on their visa than which the employer intended to sponsor them for.

Refunds are processed automatically (usually within 90 days) via the Sponsorship Management System (SMS) upon the following:

  • the reporting of the migrant’s change in circumstances;
  • 90 days after the expiry of a certificate of sponsorship that has not been used; or
  • 90 days of the date of the worker’s visa application being refused or withdrawn (including any application for administrative review).

Notwithstanding the timeframes proposed it is likely that the refund process will be slow in the same way it has been for the Immigration Health Surcharge; with the turnaround time likely to be determined by the number of refund applications being dealt with at any given time. As an employer, you may therefore experience some delay before the ISC paid can be recovered.

5. What does this mean for employers?

Employers are left with little choice but to recruit from outside of the EEA given the skills shortages in certain professions and sectors which remain in the UK. This may well be compounded with the UK’s preparations for their exit from the EU.

The rising cost of overseas recruitment, in addition to increases to the minimum salary threshold and the rising cost of visa applications, is a direct move by the Government to reduce the UK’s net migration. This trend is likely to continue for some time. Whilst long term strategies to improve the skill set of UK workforce are being discussed and implemented in some sectors, they are still in their early stages.

In the meantime UK employers hiring from outside the EEA will want to consider taking steps to undertake a ‘cost v benefit’ analysis of their existing recruitment strategies and the financial implications arising from overseas recruitment. UK employers may also want to start identifying any skills gaps in their existing workforce with a view to training up existing employees. Investing in current employees in this way will assist with reducing the need for recruitment outside of the EEA and may prove to be a more commercially viable investment plan for the future.