Author: Adarsh Girijadevi

Employment Upper Tribunal says failure to provide evidence of right to work not a fair reason to dismiss.

In the case of Baker v Abellio London Ltd [2017] UKEAT 0250_16_0510the Employment Appeal Tribunal found that not having documents confirming an employee’s right to work is not in itself a fair reason for dismissal. However, genuinely believing that you need the documents can be a fair reason for dismissal.

It is good news that there is no requirement on an employer to obtain certain documents to continue employing someone. If an employer is satisfied that its employee has the right to work  for example because they have evidence that an application was made on time; or they have a positive verification from the Home Office of the employee’s right to work – they cannot dismiss the employee only because they do not have a document demonstrating that right.

On the other hand, that does not solve the situation when employers are simply not satisfied that the employee has the right to work in the first place, which is often what happens.

Whilst Baker v Abellio is good news in cases where clients work for employers who accept that they have the right to work, those clients whose employers suspect otherwise will continue to rely on the Home Office’s often unreliable Employer Checking Service.

Please speak to our legal team on 020 3695 4626 if you need any further advise.

TOEIC issue-court ruled that accused people have in-country right of challenge

The Court of Appeal has held in Ahsan v Secretary of State for the Home Department (Rev 1) [2017] EWCA Civ 2009 that people accused of cheating on the TOEIC English language test and threatened with removal from the UK have the right to challenge that decision in this country rather than from abroad.

Lord Justice Underhill said that:

an out-of-country appeal would not satisfy the Appellants’ rights, either at common law or under article 8 of the Convention, to a fair and effective procedure to challenge the decisions to remove them; and that in those circumstances, subject to the human rights claim issue considered below, they were entitled to proceed with such a challenge by way of judicial review.

The court did not accept the Secretary of State’s argument that the application for judicial review should be rejected because the appellants could pursue an in-country appeal by way of a human rights application instead. The court has, helpfully, given for the assistance of practitioners a short summary of its reasoning at the conclusion of a lengthy judgment, although Underhill LJ stressed that it carries a risk of over-simplification. The summary is as follows:

(1) In deciding by what route a decision to remove someone on the basis that they cheated in a TOEIC test can be challenged, the starting-point is to establish whether the decision was made under the 2014 Act regime or its successor. (If it was made prior to 20 October 2014 it will fall under the old regime, and if it was made after 5 April 2015 it will fall under the new regime; in between those dates the position depends on the effect of the applicable commencement and transitional provisions.)

(2) If the decision falls under the old regime it will have been taken under section 10 of the 1999 Act in its unamended form. The person affected by the decision will generally have a right only to an out-of-country appeal, under section 82 of the 2002 Act, read with section 92 (1): they will not, except by unusual chance, have a right to an in-country appeal under the “human rights claim” provision of section 92 (4), because they will not typically have made such a claim prior to the removal decision: see para. 15.

(3) What the Court holds in part (A) – see in particular paras. 72-98 – is that an out-of-country appeal is not an effective remedy where (a) it would be necessary for the appellant to give oral evidence on such an appeal and (b) facilities for him or her to do so by video-link from the country to which they will be removed are not realistically available. It accordingly holds, subject to (4) below, that persons against whom such a decision is made will be entitled to challenge the decision by way of judicial review; that is so whether or not their article 8 rights are engaged. In reaching that conclusion the Court follows the approach of the Supreme Court in Kiarie and Byndloss to what are substantially similar circumstances and distinguishes its previous decisions in Mehmood and Ali and Sood. The Court finds that both conditions were satisfied in the present cases and observes that condition (a) is likely to be satisfied in TOEIC cases generally (see para. 91) and that in typical cases condition (b) is likely to be satisfied also (see para. 90).

(4) Notwithstanding (3), the Court at para. 99-127 accepts that in principle permission to proceed by way of judicial review could be refused if the person in question could achieve an equivalent remedy by an in-country human rights appeal under the 2014 Act regime, subject to the Home Secretary’s power to certify the claim as wholly unfounded. But such a remedy would only be equivalent if the three conditions identified at para. 116 above are satisfied, which they were not in these cases.

(5) Part (B) of the judgment concerns a challenge to the certification of a human rights claim in a particular case to which the 2014 Act regime applies. The Court finds that the certificate is liable to be quashed. The decision does not directly depend on the issue of whether the Appellant cheated in his TOEIC test, but the Court makes some observations about the appropriateness of certification where that is the determinative issue: see para. 156.

(6) The judgment also discusses the authorities on the extent to which the article 8 rights of students may be engaged by their removal prior to completion of their studies (see paras. 84-88) and the obligations of the Secretary of State to facilitate return in cases where a person who has been removed is successful in an out-of-country appeal (see para. 133).

If you were affected by the TOEIC refusal and unsure how this judgement affects you, please give our legal team a call on 020 3695 4626.

EU citizens retain free movement rights after naturalisation in host state

The Court of Justice of the European Union has found in the case of C-165/16 Lounes that EU citizens who move to the UK and later naturalise as British retain their free movement rights under EU law even though they have become British. The court has held that the UK has wrongly been refusing to recognise free movement rights for such EU citizens since 2012.

The case has particular significance to those EU citizens who have naturalised as British following the Brexit referendum because it means that the UK has wrongly been denying them their EU law rights in the meantime. The victory is a Pyrrhic one for them, perhaps, because after Brexit these rights will be lost, unless the UK agrees that free movement law continues in some form, for example with a transitional deal.

The judgment does not just apply to EU citizens coming to the UK, though. It has considerable significance across the EU for the integration of long term residents from other EU countries.

New settled status updates for EU citizens

The government on 07th November 2017 offered further reassurance for EU citizens and their family members by setting out further details of how its new settled status scheme will operate.Those applying to stay in the UK after we leave the EU will not have their applications refused on minor technicalities and caseworkers considering applications will exercise discretion where appropriate. We expect the majority of cases to be granted.

EU citizens will also be given a statutory right of appeal, in line with their current rights through the Free Movement Directive, if their application is unsuccessful.In a technical document sent to the European Commission as part of negotiations, the government reiterates how the new system will be streamlined, low-cost and user-friendly, with EU citizens consulted on its design.

The Prime Minister has been clear that safeguarding the rights of EU citizens living in the UK and UK nationals in Europe is the first priority for negotiations and she said last month that an agreement is within touching distance. Secretary of State for Exiting the EU, David Davis said:

We have been clear that safeguarding the rights of EU citizens is our top priority in our negotiations. They make a huge contribution to our economy and society and we do not want to see that change as a result of our decision to leave the EU.

We will support everyone wishing to stay to gain settled status through a new straightforward, streamlined system.

The last negotiation round saw real progress in this area and I believe the document we have published today can facilitate the deal we need to guarantee the rights of UK citizens living in the EU27, and vice versa.

The document commits to:

  • giving EU citizens plenty of time to apply, with a 2-year grace period after we leave the EU to make an application for settled status
  • minimising the documentary evidence that applicants need to provide and enabling caseworkers to contact applicants to resolve minor issues
  • keeping the cost of an application to no more than that of a British passport
  • giving EU citizens a statutory right of appeal, in line with their current rights through the Free Movement Directive, if their application is unsuccessful
  • making decisions solely on the criteria set out in the Withdrawal Agreement, with no discretion for other reasons for refusal
  • introducing a digital, streamlined and user friendly application system
  • not requiring EU citizens to have held comprehensive sickness insurance or to provide fingerprints
  • a simpler, lower cost process for those who already have permanent residence documentation.

The document also sets out that applicants will be asked to declare any criminal convictions and be checked against UK security databases. This is a reasonable measure to keep the country safe from those who have abused our hospitality by committing serious crimes.

If you are unsure whether to apply for a EEA PR document now or wait for the simplified process as detailed above, please get in touch with us to discuss more on 020 3695 4626.

Immigration Act puts further obligations on banks to check the Immigration status of customers.

The Immigration Act 2014 prohibited firms from opening current accounts for people who don’t have leave to remain in or enter into the UK. The Immigration Act 2014 has been amended by the Immigration Act 2016 and these amendments come into force on 30 October 2017.

There will be a number of additional requirements on firms including a requirement to carry out periodic checks of the immigration status of existing current account customers. This will include accounts opened before the 2014 Act prohibition came into force and will encompass situations where accounts may have been opened during a period of lawful stay but where the migrant has remained in the UK after their leave has expired.

The first immigration check is required to be carried out for the quarter beginning on 1 January 2018. Firms will be checking for accounts operated by a disqualified person (i.e. a person who is in the UK but who does not have the required leave to enter or remain in the UK).

The firm must then inform the Home Office if any account is identified and the Home Office will then carry out a check. The Home Office will have a range of options including requiring firms to close the account as soon as possible and power to apply to the Court to freeze an account until the individual leaves the UK.

The Immigration Act 2014 (Bank Accounts) Regulations will be amended to extend the Financial Conduct Authority (FCA) duty to monitor and enforce compliance with the new requirements. The FCA is currently consulting on its approach to the amended Immigration Act and regulations including reporting, monitoring and enforcement.

What do you need to know?

New accounts

Where the check identifies that the applicant is a disqualified person, firms must refuse to open the account. This prohibition includes:

  • opening joint current accounts for any disqualified persons
  • opening a current account where the disqualified person is a signatory or is identified as a beneficiary
  • adding any disqualified person as a current account holder, signatory or identified beneficiary in relation to an existing current account

Where firms refuse to open a current account due to concerns the person is a disqualified person, the firm must tell that person the reason for the refusal (as long as doing so does not conflict with obligations under other legislation e.g. Anti-Money Laundering legislation). Particular wording has been prepared by the Home Office which can be used where firms have refused an account.

Existing accounts

In terms of existing accounts, from 1 January 2018, firms will also be required to carry out quarterly immigration checks and any accounts found to be operated by a disqualified person must likewise be reported to the Home Office.

What do firms need to do?

  • make arrangements to comply with the Immigration Act 2016 and ensure that the relevant checks are put in place and employees are aware of the obligations and receive the necessary training;
  • put in place record-keeping procedures so that they can demonstrate compliance with the Immigration Act 2016 to the FCA. Firms will need to keep these records for at least 5 years. Firms will also need to confirm to the FCA each year that they are complying with their obligations under the Immigration Act;
  • terms and conditions will need to be updated in order to take account of the new quarterly checks; and
  • any issues with compliance will need to be reported to the FCA in the usual way.

Implications of the Immigration Act

This will place yet a further obligation on firms to monitor account activity. Appropriate systems and checks will need to be put in place to ensure compliance with this new obligation. Industry experts have expressed concerns that these requirements will make it harder for legitimate customers to open bank accounts.

Questions have also been raised about where liability will lie if things go wrong. In circumstances where a search brings up a number of names this may lead to the incorrect bank accounts being frozen or closed which could lead to claims being issued against firms. Appropriate records will need to be maintained to show why decisions have been made in order to evidence a firms compliance with the act.

Firms will also need to ensure its policies and procedures are clear and comply with other legislative requirements.

Who is affected?

You have been refused a current account

Banks and building societies are required to carry out immigration status checks on people applying for current accounts. Under the Immigration Act 2014 they must refuse your application for a new current account (or an application to add you as a signatory or identified beneficiary to a new or existing current account) if you are a disqualified person.

You may be disqualified if you are in the UK and need leave to enter or remain (under the Immigration Act 1971) and don’t have leave to be here. This could be because you:

  • never had leave to enter or remain (because you entered the UK illegally)
  • had leave but stayed after it expired or was revoked
  • are an European Economic Area (EEA) national subject to deportation action who has exhausted all rights of appeal

Your account has been closed

Banks and building societies are required to carry out immigration status checks on people who hold current accounts. If you are identified as being disqualified from holding an account, then, under the Immigration Act 2014 the bank or building society must close your accounts (or restrict access where you are a signatory or identified beneficiary, or the account is jointly held with a non-disqualified person). You may be disqualified if you are in the UK and need leave to enter or remain (under the Immigration Act 1971) and don’t have leave to be here. This could be because you:

  • never had leave to enter or remain (because you entered the UK illegally)
  • had leave, but stayed after it expired or was revoked
  • are an European Economic Area national subject to deportation action who has exhausted all rights of appeal.

The Home Office has the power under the Immigration Act 2014 to apply for a freezing order in relation to current accounts for disqualified person.

Query the decision

If a bank or building society refuses your application for a current account or closes your current account under the Immigration Act 2014, it will normally tell you why. If you believe there’s been a mistake, you should contact the Home Office with evidence of your lawful immigration status. If you have a right to be in the UK, the Home Office will change your details so you can re-apply to open a current account or re-open your existing account.

If you have any further questions or require any assistance relating issues with your bank account give us a call on 020 3695 4626 or email us on enquiries@citylegalservices.co.uk

EEA (EFM) Appeal rights – Case of SALA overturned in the court of appeal

The EEA – Extended family member’s appeal rights were withdrawn further to the judgement in the case of Sala (EFMs: Right of Appeal : Albania) [2016] UKUT 411 (IAC). The Upper Tribunal in this case has ruled that there is no right of appeal against a decision by the Home Office to refuse a residence card to a person claiming to be an extended family member.

A a direct result of this judgement, the Home Office updated their guidelines regarding the appeal rights & all subsequent application refusals did not carry any right of appeal. The First Tier tribunal also invalidated appeals outstanding with them which caused a real panic among the appellants.

The court of appeal considered this in the case of MK Pakistan & overturned the judgement yesterday by allowing the appeal on the interpretation grounds. The effect of the decision is that all those appeals pending under the 2006 Regulations should now be able to proceed. Those that have resulted in notices of invalid appeal will need to be challenged. This point may be slightly academic now, in the sense that only the 2006 Regulations are directly affected, but the path to a challenge to the 2016 Regulations now exists.

If you are affected by SALA case and wants any further advise on how to challenge this, please call one of our experts on 020 3695 4626.

 

Figures show that one in five stopped by immigration enforcement is a UK citizen

One in five people stopped by immigration enforcement teams in Britain’s biggest cities is a UK national, according to newly revealed figures that critics say cast doubt on official claims that such stops are “intelligence-led”.The figures, obtained through freedom of information requests, show that out of 102,552 stopped in the past five years, 19,096 – 18.6% – were British citizens. Lawyers say they lend credence to suspicions of unlawful racial profiling.

The data, which covers 11 of the largest cities in England, Wales and Scotland, shows that in London alone, 8,002 British citizens were stopped. In Sheffield and Glasgow, nearly a third of those stopped were British citizens.

Full story can be read here.

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.