Author: Adarsh Girijadevi

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.

Why is our Government trying to retain the net migration target?

Despite failing comprehensively to achieve the net migration target in either of the last two parliaments and regardless of the voices from all sides of the electoral spectrum calling for it to be dropped, Theresa May will not be swayed. To those of us who have seen Theresa May’s approach to immigration as Home Secretary and PM, this is unsurprising. A government who baulks at a few hundred unaccompanied refugee children is unlikely to suddenly embrace a realistic immigration policy which accepts that the economy, families and our commitment to human rights cannot be restricted to an arbitrary numerical target.

The foolhardiness of this decision, particularly at a time when businesses are increasingly anxious about accessing the skilled workers they need in a post-Brexit Britain, can be illustrated with a quick look at the breakdown of the categories of non-EEA migrants coming to the UK.

In 2016, there were 207,200 study related visas granted, excluding short-term study visas. There have long been calls to exclude students from the net migration figures as student migrants generally are only seeking to come to the UK on a temporary basis and as a general rule, the student visa category does not lead to settlement in the UK. If students remain part of the net migration figures however, then surely further restrictions on students coming to the UK are on the horizon as it is impossible to achieve this target otherwise. Will that benefit the UK? Will reducing the ability of UK universities to capitalise on wealthy international students help them retain their status as some of the top educational establishments in the world? Is this a smart move at a time when the higher education sector already has to deal with the uncertainty of Brexit and what that means for their funding going forward? And if we do drastically cut the number of international students, who will plug this funding gap? Will the British student whose tuition fees have to rise to compensate really be grateful that at least net migration is down? No, of course they won’t. Cutting student migration simply to present more politically popular numbers is harmful to the UK and shows why the net migration target must be dropped.

There were 163,882 work related visas issued in 2016, although more than 70,000 of these were for migrants who would not be able to settle in the UK on the basis of their visa status and whose leave in the UK would be capped at anywhere from six months to five years. Although the overall number of sponsored skilled workers remained largely unchanged from 2015, there was an increase in the number of workers in the human health and social work activities sector, likely reflecting the recognition of nurses as a shortage occupation. Even with these increased numbers the Public Accounts Committee warned in 2016 that the NHS in England was 50,000 people short of front-line staff, representing 6% of the workforce. This is not likely to improve as recruitment from the EU, which currently provides an estimated 5% of the NHS workforce (including 10% of doctors), is down following the decision in last year’s referendum. As well as critical skill gaps across the economy and a lack of interest in low skilled jobs (Pret-a-Manger revealed earlier this year that only 1 in 50 job applications comes from a British national) we have an aging population and funding shortages for their social care, never mind potential issues funding pensions and healthcare in the years to come. We are consistently told that we must get immigration down to ‘sustainable’ levels and that means the tens of thousands, in part due to the impact on public services. However, nowhere in this conversation do we address the fact that migrants are more likely to be net contributors to the economy, therefore playing a key role in actually funding these vital public services. Instead of addressing the question of investment in public services, which have been subject to significant cuts in recent years, the politically expedient decision has been taken to decry migration and call for numerical cuts which do not address the needs which immigration seeks to meet. In the words of Stephen Martin of the Institute of Directors in response to the decision to maintain the target, “A target is a poor substitute for a proper immigration policy.”

There were 38,119 visas issued to family members of British or settled persons in 2016. Despite this, a JCWI report in 2015 showed that thousands of families face separation, including 15,000 British Citizen children due to the Immigration Rules introduced in July 2012 which made it much more difficult for families to meet the requirements for visas in the UK. The 2012 rule changes were seen by many as a way to reduce net migration. The previous rules already required applicants to satisfy a maintenance requirement but allowed more flexibility in how this was done. The strict, heavy handed and often nonsensical way in which the new rules worked often seemed like a deterrent rather than aimed at preventing reliance on public funds. Further cuts to migration of family members cannot be a just way to cut the numbers but seems inevitable if the target will not be abandoned.

In response to this ‘Why though’ question earlier this week, on her decision to retain the target, Theresa May said it was important to think why a target was needed and that the reason was due to the impact net migration has on people and on public services. She said that she wants to get it down to sustainable levels. That means tens of thousands. I’m sorry but that does not answer the question. Immigration is crucial to our economy, to the funding and functioning of our public services, to our highly respected education sector and to the stability and well being of thousands of families in the UK. Our immigration policy should be designed to meet these needs rather than to meet a random number. Despite refusing to drop the target, Theresa May was coy as to whether it could actually be met by 2022. The net migration target, I would suggest, is neither realistic nor desirable.

Spouse Visa Refusal: Feeling a World Apart

One of the most challenging sides of UK immigration law is to understand that no matter how strongly you feel, how much you love, or how hard you work…in the end, a decision is made by someone who will judge your application solely on the basis of the information you provide. When it comes to spouses wanting to live and settle together in the UK, a Spouse Visa Refusal can feel like an exceptionally personal attack.

But it isn’t. It is just “business.” And it is a business the UK Home Office is making a lot of money out of.

Spouse Visa Refusals – why do they happen?

As with a great many visa refusals, Spouse Visa Refusals general occur when the Home Office have found any slight detail on your application that they can claim fails to meet requirements. Often these details are buried deep in your application and refer to an obscure paragraph in a set of laws that are extremely complex. It’s quite normal for people to look up the basic criteria provided on the Gov.UK website and use that as a kind of checklist. But that is a big mistake.

A “Spouse Visa” is needed when a married couple – or Civil Partmers, legally it is the same thing – wish to both settle together in the UK. It requires that one of them, the “Sponsor” is already a Brit, has British Citizenship, has Indefinite Leave to Remain (ILR), or is otherwise settled in the UK. It can also be used if a couple lived in another country and they wish to come back to the UK: the British Citizen would be the sponsor, and their partner would be the applicant.

It is at this point that people wrongly assume the spouse visa process is very simple. It is made to seem that way on TV and in films – the whole romantic idea or swooping your loved one away from their home and landing back in the UK, untouchable because, “by golly, she’s my wife!” But the truth is so much more sour and cold than that.

The Home Office will go through a spouse application just like any other: with a extra-fine tooth comb. All spouse visa refusal decisions will come with an explanation, but it will refer to very specific paragraphs, sub paragraphs, and even comments deep inside the chasm of immigration law, that unless you have inordinate time, patience, or a law degree, you have no chance of knowing about. Of course the Home Office agents are there to do just that task, and if you’ve missed any tiny detail, they will find it. Although there are many reasons why a spouse visa refusal may happen, I’ve outlined three of the most common examples that we come across and deal with.

Financial situation:

The financial requirements for a Spouse Visa lie with the sponsor, and not the applicant. The sponsor partner needs to show that they are financially able to support their partner. It doesn’t matter how much money the applicant earns (unless they have a very substantial amount in savings) – it all depends on the sponsor. However, that is not quite the whole story. It won’t be enough to just say the sponsor earns, for example £Lots per year, you will have to provide evidence for this. That might include bank statements, P60, Tax Returns documents, and so on. The Home Office have no intention of letting anyone off lightly, and if there is any error they will find it.

English Language:

The applicant will need to show that they have a sufficient command of English language and provide documentation to prove this. It isn’t enough to assume that the fact the applicant speaks English, even if they speak it very well, will be enough to satisfy the specified details for the Home Office. Everything comes down to evidence to meet the specified requirements in minute detail. Often a Spouse visa refusal decision is made because of this relatively straight forward step.

Evidence of Relationship

Often the most contentious of issues, if the application does not show that the relationship is a genuine, long-term relationship, the visa will be refused. It comes down to not making the mistake of taking the decision personally. The Home Office does not know applicants personally and it is the responsibility of the applicant to provide the evidence in support of their claim. For example, if the application said that the couple are married but other evidence obtained by the Home Office shows that the couple actually have two separate addresses – information they can easily obtain from tax records, Electoral Roll, and so on – then a spouse visa refusal may occur.

Spouse Visa Refusal: Appeals

Not every refusal will be given the right to appeal, and a lot of the time it is more sensible for the applicant to lodge an entirely new application ways.`A common misconception with appeals is that they give you a chance to be “heard” for a second time and put your case to the Home Office again. This might be true to extent, but an appeal does not give you a chance to add new information, it is merely a chance to state that you believe there was an error made. As such, the same evidence you presented first time will be viewed again.

And it can take a very long time – perhaps twelve months, or even more.

That is why it is often far wiser to submit a brand new application rather that submitting an appeal against a spouse visa refusal. However, it is essential that the reasons for the refusal are addressed directly and clearly in the second application or it will simply be refused again. Yes, that might sound obvious, but there are people who keep applying over and over and failing to address the specific areas.

Get Professional Support

I have blogged before about the importance of hiring professionals for UK immigration purposes:  Of course Immigration lawyers charge a fee, but in the long run it works out far cheaper knowing that your application will be right on the first attempt than to be paying out hundreds, even thousands on each failed attempt.

How to Manage Recruitment Immigration Risks

Between July – September 2016 alone, UKVI issued £10.2million in fines to UK employers for illegal working. For employers, the option of recruiting from the global talent market is critical to maintaining operations and importantly, competitive advantage. But the penalties for employing illegal workers and failing to comply with your immigration duties are considerable, and best avoided.

Fundamentally, your recruitment practices should enable you to find the best candidates for your needs – individuals with the right skills, experience, competencies. Where the UK labour market does not offer the solution, turning to the recruitment may be a solution. This has become common practice in sectors such as health and social care, tech, hospitality, leisure, agriculture, construction, where domestic labour shortages are leaving employers with little choice than to look overseas to meet talent needs. There are however a number of risks employers should be aware of when recruiting non-UK workers.

At every stage of the recruitment process, you are potentially facing immigration compliance issue.

1. Job adverts – the Resident Labour Market Test

Tier 2 sponsor licence holders have an active role in ensuring compliance with their immigration duties. Keeping up to date with sponsor licence duties is an area of significant business risk. Failure to comply with duties can result in licence downgrading or revocation, along with substantial fines and even imprisonment. A significant area of risk for sponsors is use of the Resident Labour Market Test (RLMT). The purpose of the RLMT is to protect the domestic workforce by confirming the post being filled is genuine. The government requires that UK employers have tested the market to ensure the position they would like to fill with an overseas worker cannot be filled locally. They also have to confirm the position is skilled and meets the requirements to warrant a visa being issued for an individual to come to the UK to carry out the role. Sponsors who are required to carry out the test must advertise the position they wish to fill in two places listed in the guidance issued by UK Visa and Immigration:

National newspaper – must be published at least once a week and marketed throughout the UK

Professional Journal – Published for a particular field and is available nationally

Milkround – this is an annual recruitment programme where employers from a range of sectors visit universities to give presentations and/or interview students

Rolling recruitment campaigns – allows companies to select skilled individuals who might fill future, unfilled vacancies rather than specific roles

Recruitment agencies and head-huntersInternet – websites are not restrict

The job can be advertised using one method as long as there are two adverts live, i.e. internet, posting a job on the Job Centre Plus website and on your company website (if the requirements are met) is acceptable. This exercise needs to be carried out for a total of 28 days, which you must be able to evidence. Ensure you keep a record of the posting date and closing date. We also recommend you include the opening as well as closing dates in the body of the advert.

The following information is mandatory on your advertisements:

• Job title • Location of the job • Indication of salary package • Main duties and responsibilities • Requirements • Posting / Closing dates

UK Visas and Immigration are within their rights to request a copy of the advert at any point during the application process. If the advert is not requested at this point, then it will definitely be spotted should UK Visas and Immigration decide to visit your offices and inspect files.

The main exemptions for when resident labour market test does not need to be carried out are as follows:

  • High earners – where total annual salary package is £155,300 or above.
  • Extension applications – for an existing employee to extend their leave in the UK to continue to do the same job.
  • Shortage Occupation – where the role is included on UKVI’s shortage occupation list and the employee will be working at least 30 hours per week.
  • Previous grant of leave – where the potential employee is applying for Tier 2 (General) leave in the UK and has been granted leave to enter or stay under certain headings.

This list is not exhaustive and other exemptions do apply.

2. Interviewing – discrimination

When recruiting, an employer cannot make assumptions about a person’s right to work or immigration status on the basis of their ethnicity, accent, physical appearance or the length of time they have lived in the UK. Under the Equality Act, it is unlawful to discriminate against a job applicant or employee on the basis of their race, which includes:

  • colour;
  • nationality (including citizenship);
  • ethnic origin; or
  • national origin.

While Britain remains a part of Europe, the Free Movement of Labour principle still applies. This means that under the Equality Act, employers must give equal weight to applications from UK citizens and EU nationals. Arbitrary requirements such as hiring British workers only, would be discriminatory. Formal processes for shortlisting, interviewing and selecting canditates should take into accont the underlying compliance risks, and ensure personnel are trained and understand the implications of non-compliance.

3. Onboarding – right to work

The Immigration Rules are unequivocal in that an employer is not permitted to employ an individual who does not have a valid Right to Work in the UK. Failure to comply with your Right to Work duties can result in a civil penalty, sponsor licence downgrade or revocation.

Your duties as an employer are to:

  • check and keep copies of original, ‘acceptable’ documents before someone starts working for you;
  • carry out repeat checks at least once every 12 months if a person has a time limit on their stay; and
  • not employ a person in breach of any restrictions such as type of work or the amount of hours they can work.

This process applies most apply to all employees. Singling out nationalities could be grounds for discrimination. Your on boarding process should be geared to ensure consistent and accurate compliance with your Right to Work duties. This could require use of technology to capture all documentation at the point of onboarding, and notify about the expiry of any permissions and actions to be taken.

What can HR do to manage risk and ensure organisational compliance?

HRs should ensure the ongoing accuracy and suitability of policies and processes. It is also critical to ensure line managers and those with recruitment responsibilities are trained on their responsibilities and best practice procedures, particularly in response to any changes in immigration rules, which are common.

Home Secretary refuses to commit to bringing immigration below 100,000

The Home Secretary refused to commit to the controversial Tory commitment to reduce immigration to below 100,000.

Amber Rudd explained that ending free movement meant the circumstances had changed. In 2010 David Cameron committed the Conservatives to reducing immigration to the tens of thousands which the Tories repeated in their 2015 manifesto. But today Amber Rudd indicated the Tories might row back from their long-held pledge saying the new manifesto “would not be identical”.

Earlier this year Theresa May made a personal commitment to keeping David Cameron’s 2010 pledge to reduce immigration to the tens of thousands. Last month she said on a visit to Enfield in north London: “We’ve been very clear, as I was as Home Secretary for six years, that it’s important that we have net migration that is in sustainable numbers.

“We believe sustainable numbers are the tens of thousands.”

Amber Rudd has also said that she had no intention of excluding student numbers from the overall immigration target as some of her cabinet colleagues had wanted arguing that: “It’s a complete red herring”. The Home Secretary explained that with Brexit and an end to freedom of movement the situation has changed. She said: “My personal view is that we need to continue to bring immigration down I want to make sure that we do it in a way that supports businesses. We’re ending freedom of movement when we’re leaving the European Union.

“So the situation since the manifesto has changed so it’s right that we look at it again.”

Ms Rudd admitted: “Immigration is good for this country, is good for business and has been positive for the country overall and we will want to continue it.”

She also refused to commit to a so-called ‘barista visa’ which would allow young European citizens to come to Britain for two years. Ms Rudd said she had an “open mind” and that she would be talking to businesses over the summer about was “really necessary” in terms of immigration and what was “nice to have”. Ms Rudd made a clear break with cabinet colleagues by refusing to commit to taking international student numbers out of the immigration figures. Boris Johnson and Philip Hammond have spoken in favour of removing those numbers from the overall target but Amber Rudd described the argument as a “red herring”.  She said they weren’t trying to keep student numbers down but “we just don’t want student courses to be used as a migration route”.

The number of international students at UK universities and colleges is currently included in the overall immigration figures. But Amber Rudd said there was no value in excluding students from the figures because when they leave or get a graduate job they are removed from the net migration numbers. She said what was essential was to get the right figures for the numbers that leave or get graduate jobs but “we’ve only started collecting the exit data since early April 2015”.

It is understood that behind the scenes some ministers have been trying to persuade the PM to drop the immigration limit from the Tory manifesto.

Right to rent: Checking your tenant(s) immigration status

As part of the UK government’s attempt to control illegal immigration in England, statutory provisions were introduced into the world of Landlord and Tenant by the Immigration Acts 2014 & 2016 (the 2014 and 2016 Act respectively).  This required landlords to check the immigration status of prospective tenants before letting properties to them, or face having to pay fines, penalties and committing a criminal offence.

It is vital for landlords to understand what the 2014 & 2016 Act’s require them to do, and this is why!

Following introduction of the 2014 Act, as at 1 February 2016 any property owner wishing to rent out its property is required to ensure that not only the tenant, but all adult occupiers of the property, had an immigration status that allowed them to be in England.  If a landlord failed to make those checks, and it turned out that the tenant or any adult occupier of the property did not have the appropriate immigration status, and therefore had no right to rent premises in England, that landlord could face a fine of up to £3,000, and following the implementation of the 2016 Act, would commit a criminal offence opening up a liability for a prison term of up to 5 years and/or a fine.

If a Prospective tenant had a time limited right to rent, e.g. their immigration status has an expiration date, the failure to carry out a further check at the time of the expiration date, would again leave the landlord open to a fine, penalty and criminal conviction.

Where a landlord uses a letting agent to deal with the letting of its property, the landlord can enter into an agreement with the letting agent that the letting agent will take responsibility for carrying out the immigration status checks of tenants, and therefore it will be the letting agent who would be liable for any potential fine, penalty and committal of a criminal offence.

The Home Office has produced a code of practice that gives guidance to landlords of what checks need to be carried out and how those checks can be carried out.

The 2016 Act introduced an ability for landlords to evict those without the appropriate immigration status from premises, without having to go through the costly and time consuming process of issuing possession proceedings in the county courts.  If a landlord receives a notice from the Secretary of State confirming that all of the occupiers of a property lack the sufficient immigration status, a landlord can give the occupants 28 days written notice to quit the property.  Upon expiry of that notice it becomes enforceable as if it were a High Court order and a landlord can instruct a High Court Enforcement Officer (HCEO) to enforce the notice.  A landlord could even avoid having to instruct the HCEO because if the Secretary of State has served a notice confirming all occupiers do not having the appropriate immigration status any tenancy would be considered an “excluded tenancy” and therefore not protected by the Protection from Eviction Act 1977.  The landlord could then, in theory, change the locks to the property, assuming that no one is in occupation, and therefore prevent the occupants from regaining access to the property.  Steps will however need to be taken in dealing with the occupier’s personal belongings.

However, occupiers who receive a notice to quit can apply for judicial review to challenge the Secretary of State’s notice and until that judicial review application has been dealt with, the landlord can be prevented from enforcing the notice.

A landlords responsibilities do not end there!

The 2016 Act also made an amendment to the Housing Act 1988 by introducing a further ground for possession. If ‘any’ occupier of the rented property does not have the appropriate immigration status, a landlord can serve a Notice seeking possession relying upon the new Ground 7(B) giving a notice period of two weeks.  Ground 7(B) is a mandatory ground for possession, and therefore a court must make a possession order when the possession proceedings that the landlord must then issue, come on for hearing at court.  A possession order will then need to be enforced by the court bailiff, or if transferred to the High Court for enforcement, by a HCEO.

If a landlord is given notice or becomes aware that the tenant or any adult occupier does not or no longer has the appropriate immigration status, the landlord must take immediate steps to evict the individual by following either of the two eviction processes. Failure to do so will result in the landlords being guilty of a criminal offence, and again liable to a criminal conviction and/or a fine.

The lesson here is simple.  Before you let your property to anybody you must check their immigration status and you should renew your checks upon either renewal of the tenancy or if the tenant had a limited right to be in England upon the time limit of that right expiring.

A recent government survey revealed that as at 31 October 2016 75 civil penalties have been issued to landlords of tenants with no right to rent and as at 30 September 2016, 31 people have been removed from the UK as a result of the right to rent regime. However, those 31 people were only a small proportion of the 654 individuals (5%) whom had been identified as not having the right to rent. This begs the question, is it really working? Only time will tell!