On 29 March 2022, the Home Office published new Immigration Rules covering immigration schemes aimed at facilitating the grant of UK immigration permission for Ukrainian citizens and their families. In addition to bringing the existing Ukraine Family Scheme and Homes for Ukraine Sponsorship Scheme within the Rules from 30 March 2022, a new Ukraine Extension Scheme will launch from 3 May 2022.

Text:

The Statement of Changes in Immigration Rules, HC 1220, also introduces a new Appendix Relationship with Partner, which will be used from 30 March 2022 to set out the relationship requirements for individuals applying as a spouse, civil partner or unmarried partner in a durable relationship of at least two years. Initially this appendix will only be relevant for applications under the Ukraine schemes, but will be applied to other immigration categories at a later date.

Applicant eligibility under the Ukraine Extension Scheme

To be eligible, an applicant must be:

• A Ukrainian citizen;

• A partner or child of a Ukrainian citizen who has/last had UK immigration permission in that capacity; or

• A child of a Ukrainian citizen born in the UK after 18 March 2022.

Applicants must also be in the UK and have had UK immigration permission on 18 March 2022 unless:

• They were in the UK with permission immediately before 1 January 2022 and that permission has expired by the time they make their application; or

• They are a child born in the UK after 18 March 2022.

Application process and grant

The application will be free of charge and applicants must provide their biometrics at a UKVCAS service point.

Immigration permission will be granted for up to three years. Those who have previously been granted immigration permission under any of the Ukraine Schemes will be granted a shorter period, to take the total permission under the Schemes up to three years.

UES participants will be allowed to work, study, rent private accommodation, use the NHS, access English language tuition and claim benefits in the UK.

Details of how to apply under UES will be made available on GOV.UK closer to the launch date.

For specific queries, individuals can contact a free 24/7 UKVI helpline on +44 808 164 8810 (0808 164 8810 from within the UK), or +44 (0)175 390 7510 for those who cannot contact UK 0808 numbers.

Outstanding issues for the UES

There will be some UES-eligible applicants whose UK immigration permission is due to expire between now and when the scheme launches on 3 May 2022. The Home Office has not yet made any announcement confirming that these individuals will not be subject to the usual measures that apply to overstayers until such time as permission is granted under UES, or whether they are expected to apply under existing routes in the interim. We have sought clarification on this.

Also, the UES will not cover dependants of individuals are currently in the UK in categories that do not permit dependants, such as the Seasonal Worker category. Once granted permission under UES, Seasonal Workers may be able to sponsor dependants under the Homes for Ukraine Sponsorship Scheme, however this will only be after a significant delay. We have flagged this to the Home Office as a policy issue to consider.

Lastly, it is still not clear whether any of the Ukraine schemes will offer a path to settlement in the UK. Those who want the security of being able to settle in the UK may therefore prefer to switch into or extend under another UK immigration route they are eligible for.

Other points to note in the new Rules

HC 1220 confirms other important points:

• Applicants under the Ukraine schemes can apply for entry clearance from any Visa Application Centre around the world (although displaced individuals seeking to apply in certain other categories will still need to ask the Home Office to exercise discretion if applying from a country they are only present in as a visitor);

• Applicants under the Homes for Ukraine Sponsorship Scheme must be aged 18 or over on the date of application, unless they are applying with, or to join in the UK a parent or legal guardian;

• Individuals granted immigration permission after 18 March 2022 as a visitor will not be eligible to apply for the Ukraine Family Scheme from within the UK; and

• Those whose application under the Ukraine schemes is refused will not have a right of administrative review, however it will be open to them to reapply.

We will continue to provide updates on significant UK developments as they arise. For those who are interested in understanding what guidance and help has been made available for Ukrainian refugees in the EU and beyond, and the broader consequences of the war from a work perspective, see Ukraine in Crisis – Ius Laboris.

 

Related Item(s): Immigration

Author(s)/Speaker(s): Andrew Osborne, Supinder Singh Sian, Kathryn Denyer,

Around the world people are deeply shocked and saddened about the escalating war in Ukraine.

Many employers are increasingly concerned about the wellbeing of their employees, particularly those from Ukraine or other Eastern European countries, and are considering how to best support refugees. Employers with operations in Russia are also dealing with the impact of the sanctions.

Text: In this article we highlight some of the legal and practical implications of the conflict for the employment relationship.  

Military service and other requests to take part in the conflict

In the UK there are specific arrangements for individuals who are called up to UK reserved armed forces. While these do not apply to nationals of other countries being called up for military service by their home country, employers might want to follow a similar approach. In this article, we set out considerations relating to non-UK nationals who are called up to active duty by their home country and also considerations relating to other nationals who wish to take part in the conflict.  

Getting workers out of Ukraine

Due to the escalating conflict and dangerous situation, many employers are helping workers to relocate to safety outside Ukraine. Some employers are providing workers with options for border crossings and/or helping with applications for refugee or asylum status in other countries. Employers should be careful not to help workers leave Ukraine in breach of the recent military conscription order prohibiting men aged 18 to 60 years from leaving the country.

Emigration options for Ukrainians

Many countries are amending or relaxing visa and other entry requirements for Ukrainian nationals.

EU Member States are currently implementing the Temporary Protection Directive (the Directive), which allows Member States to authorise temporary residency on humanitarian grounds for Ukrainian citizens and eligible Ukrainian residents leaving Ukraine. The Directive is explained here. Countries outside the EU have also introduced more flexible immigration conditions and other help for Ukrainians, see here. 

In the UK, the Home Office has put in place immediate concessions and has implemented two new immigration schemes for Ukrainian nationals in response to the conflict, which we covered in this article and this guide.

Under the Ukraine Family Scheme, Ukrainian citizens and their eligible family members are able to join an eligible UK-based family member. Under the Homes for Ukraine Scheme, individuals with at least six months’ immigration permission in the UK are able to act as sponsors for Ukrainian refugees and their immediate family members, if they are willing to offer them a room in their home or separate self-contained accommodation for a minimum period of six months. Details for sponsorship by businesses and other organisations will be released at a later date.

Under both the Ukraine Family Scheme and the Ukraine Sponsorship Scheme, successful applicants will be granted immigration permission for up to three years.
The UK Ukrainian schemes currently provide immigration permission outside the UK’s immigration rules and will be written into the immigration rules in the near future. Other displaced groups have received different treatment and must make either an asylum or humanitarian protection claim. It is possible, therefore, that this disparity of treatment will become a political issue in the future. 

Employing Ukrainians in the UK

Many employers are considering how to best support or employ Ukrainian refugees. For example, a large number of employers have formed a consortium to help connect Ukrainians arriving in the UK to secure employment opportunities. Little detail has emerged of how this will be achieved, which is presumably due to discrimination laws in the UK significantly limiting the extent to which employers can prioritise one nationality over another.
UK employers should tread carefully if they are considering prioritising Ukrainians for roles or potentially ring-fencing employment opportunities for them. They may face direct or indirect discrimination claims for giving preferential treatment to Ukrainians over other nationalities or even for giving preference to the broader category of people with the right to work in the UK under a humanitarian scheme. There is currently no indication that amendments will be made to the UK discrimination legislation, in relation to Ukrainian refugees, to limit employers’ potential exposure to uncapped damages and awards for injury to feelings for discrimination claims.

Other employer support for Ukrainians in the UK

The UK discrimination legislation allows employers to take ‘positive action’ to support people who are suffering a disadvantage or have particular needs. Given the harrowing circumstances under which Ukrainians have fled to the UK, leaving behind their homes, family members and jobs, there is likely a strong argument that Ukrainian nationals can be said to suffer a disadvantage and/or have particular needs.

What options are feasible will, of course, depend on the resources and structure of the employer in question, but some options that could be considered within the framework of positive action are: 

• offering short, paid work experience placements;
• ensuring that any qualifications required are genuinely required for the role and not operating as unnecessary barriers and that, where qualifications are required, the employer recognises equivalent overseas qualifications;
• providing language support during recruitment and, possibly, within the workplace going forward;
• offering language and vocational training opportunities;
• offering bursaries;
• funding childcare (given the impact of conscription, the majority of Ukrainian refugees are expected to be women and children); and
• mentoring schemes (where existing staff help Ukrainian refugees to gain an understanding of the workplace and provide assistance with CVs and job applications generally).

Whilst employers have limited scope to offer employment on the basis of nationality, charities have more scope to provide support (if not employment) to Ukrainian refugees. Therefore, donating to relevant charities could be a positive way to assist refugees without bearing the risks associated with the measures considered above. Some employers are also giving their employees time off to volunteer for a charity or to prepare for receiving refugees into their home.

Getting workers out of Russia

Employers with operations in Russia may be dealing with requests from Russian workers to leave Russia, which raises considerations of an employer’s duty of care towards its workers in Russia.   

Employers may also be considering repatriating foreign or ‘expat’ workers they have sent to Russia. The ability to do so will likely be included in the worker’s contract or assignment, with repatriation costs borne by the employer. Relocating these employees to other jurisdictions causes other legal issues, which are covered below.

Emigration options for Russian workers

Russian citizens are currently still able to make UK entry clearance applications. However, those who have already fled outside Russia may not be able to have their application approved if they apply from a country they are present in as a visitor. This is because for many immigration categories, the applicant must apply from a country they are ‘living’ in. Some immigration-related services in Russia, such as English-language testing, may also be suspended. Where a person cannot meet the requirements of the UK’s immigration rules in full, it is possible for discretion to be exercised to waive a requirement, however the Home Office may not be inclined to do this due to the sanctions currently being in force against Russia. 

Applications for Russian citizens may also be delayed if an application is considered to be complex or if additional security checks are carried out.
The Nationality and Borders Bill that is currently progressing through the UK Parliament contains provisions to impose visa penalties on countries the Home Secretary considers to have taken action that:

• poses or is likely to pose a threat to international peace and security; 
• results or is likely to result in armed conflict; or
• gives or is likely to give rise to a breach of international humanitarian law. 

Once the relevant provisions of the Bill are commenced, it is possible that visa penalties could be written into the immigration rules that would mean that entry clearance applications made by Russian citizens could be stopped from being granted, could be held to be invalid or could require an additional fee of GBP 190 to be paid. The penalties would not be applied to any applications in process before the date the rules are amended.

Impact of sanctions   

The sanctions imposed on Russian corporate entities and the related restrictions on international financial transactions are affecting the ability of employers (with Russian entities) to pay their Russian workforces. This is leading some employers to consider various options including declaring a ‘downtime’, encouraging employees to take annual leave, making employees redundant and potentially, closing their operations in Russia. Russian employment law advice should be taken on these options.

Ukrainians and Russian workers carrying out remote work

The relocation of Ukrainian and Russian workers to other countries could lead to employers finding that they have workers in locations where they previously had no presence. Employees may gain certain employment rights in these countries, particularly where they work in the country for some time. Employers should also consider whether an employee’s stay in a country creates an income tax or social security liability for the employer and also, potentially, whether the employee’s activities or presence in the host country will create a permanent establishment for the employer in that country. From a UK perspective this would be the case if, for example, the employee has a sales or business development role and is habitually exercising the authority to conclude contracts in the name of the employer while in the host country. Local rules may provide for a more expansive definition of a permanent establishment. We covered these issues here and here.  

Supporting employees in the workplace

The situation in Ukraine is very distressing for many people and it may also cause conflict in the workplace between those with different views (for example, workplaces with Ukrainian and Russian employees). Employers should consider ways to support their Ukrainian, Eastern European and Russian nationals, or indeed employees from any nationality who feel affected by the events. For example, this will include reminding staff of policies on bullying and harassment and being prepared to deal with potential conflicts between employees who may have opposing views on the events in line with these policies, including taking disciplinary action if necessary. Other ways employers may wish to support employees in the workplace are covered here.

 

Related Item(s): Employment

Author(s)/Speaker(s): James Davies, Joanna Mackey, Kathryn Denyer, Rebecca Jobling,

New Immigration Rules have recently been laid in Parliament, setting out the details of the Global Business Mobility routes. These replace the existing Intra-Company Transfer routes, the Representative of an Overseas Business provisions for sole representatives and the contractual service provider element of the International Agreement route. New provisions are also introduced for secondees whose employer has a high value contract or investment in the UK.

Text:

On 15 March 2022, the Home Office published a Statement of Changes in Immigration Rules, HC 1118. This includes a number of developments expected to be helpful for businesses seeking to facilitate knowledge transfer within an international group, to set up or expand a business in the UK, or to access a bigger pool of skilled talent from abroad. This article covers the Global Business Mobility routes, and we will cover other developments of interest to employers in a separate article.

Global Business Mobility routes (GBM)

The five Global Business Mobility (GBM) routes are due to be introduced from 9 am on 11 April 2022. They re-package and reform existing routes.

GBM migrants may only be granted immigration permission for up to five years in any six year period, with the exception of high earning senior or specialist workers (SSWs), who may be granted a maximum of nine years in any ten-year period.

Aside for some transitional arrangements for existing Intra-Company Transferees, GBM migrants will not be allowed to carry out supplementary employment. The policy logic of this appears to be that workers connected with international businesses should focus solely on the work tasks they have been brought to the UK to fulfil. 

Senior or Specialist Worker

The Senior or Specialist Worker (SSW) strand of the GBM routes reforms and replaces the Intra-Company Transferee (ICT) route. It is designed for use by senior managers and specialist employees of an international group business who are being transferred to one of the group’s UK businesses.

Many of the elements of the ICT route are carried over from ICT, including that the minimum skill level is Regulated Qualifications Framework (RQF) Level 6 (graduate level equivalent) and that there is no English language requirement. SSWs must be working for the sponsor group at the time of application, and have worked for the group abroad for at least 12 months unless they are a high earner.

Certain occupation codes for creative occupations are removed as follows:

• 3411 Artists
• 3412 Authors, writers and translators
• 3413 Actors, Entertainers and presenters
• 3414 Dancers and choreographers
• 3422 Product, clothing and related designers

Although applicants under these codes will be able to extend their stay under transitional arrangements, new applicants will need to use either the Skilled Worker or Temporary Work – Creative Worker routes instead. This will require their sponsor to have a sponsor licence under the relevant route.

Although the Migration Advisory Committee (MAC) recommended this route should lead to settlement, the Home Office has rejected this. However, in line with the MAC’s suggestions, the minimum salary threshold is raised from £41,500 to £42,400 and the high earner threshold of £73,900 is maintained. 

The maximum grant of immigration permission under this strand is five years after the start date of the UK assignment, and subject to the overall maximum grant periods for the GBM routes.

Because the skill level and bar to settlement for SSWs is the same as it was for the ICT route, we anticipate a continuation of the trend for global businesses to apply for and hold Skilled Worker sponsor licences in addition to licences under the GBM routes. Doing this enables them to transfer certain employees whose occupation skill level is between RQF Level 3 and 5, or who wish to settle in the UK. Holding a Skilled Worker sponsor licence also leaves open the possibility of recruiting EEA/Swiss citizens who do not meet the requirements of the GBM routes. 

Graduate Trainee

The new Graduate Trainee provisions reform and replace the Intra-Company Transfer Graduate Trainee route for work placements in the UK as part of a graduate training course leading to a senior management or specialist position within an international business. The minimum salary requirement is raised from £23,000 to £23,100. The salary must also be above 70% of the going rate for the relevant occupation, and the occupation must be listed as an eligible occupation for the GBM routes.

Graduate Trainees must have worked for the sponsor group for at least the three months immediately before the date of application.

The maximum grant of immigration permission under this strand is one year after the start date of the UK assignment, and subject to the overall maximum grant periods for the GBM routes.

UK Expansion Worker

The UK Expansion Worker strand replaces and expands the Representative of an Overseas Business provisions for sole representatives. People who already have immigration permission as a sole representative will still be able to extend in this capacity and settle, and the overseas media representative provisions also remain in place.

The new Rules for UK Expansion Workers will allow a team of key senior management or specialist employees of an overseas business with no trading presence in the UK to staff the set-up phase of a UK branch or wholly owned subsidiary, whereas the current provisions only allow for the transfer of one senior executive.

Unlike the sole representative provisions, the new GBM strand requires a sponsor and does not lead to settlement. Under the new provisions, there also is no prohibition on an applicant having a controlling interest in the overseas business.

Sponsor guidance is expected to be released shortly, and this should outline the criteria for sponsorship and how many workers can be sponsored under the strand. The MAC previously recommended a maximum of five workers. 

UK Expansion Workers must be paid at least £42,400 or the going rate for their occupation, whichever is higher. They must also have worked for a connected business of the sponsor abroad for at least 12 months unless they are a high earner or a Japanese citizen and the branch or subsidiary falls within the UK-Japan Comprehensive Economic Partnership Agreement.

Immigration permission may be granted for up to one year initially and extended up to a maximum of two years. 

In practice, individuals who come to the UK under this strand but ultimately aim to settle in the UK are likely to want to set up a Skilled Worker sponsor licence and switch into the Skilled Worker route as soon as possible. This is because time spent under the Expansion Worker strand cannot be counted towards the qualifying period for settlement in any other immigration category, including Skilled Worker.

The relevant businesses may also wish to set up a GBM SSW licence to facilitate the transfer of employees from group businesses abroad on a longer-term basis.  

Service Supplier

This strand reforms the Temporary Work – International Agreement provisions for service suppliers coming to the UK to provide services in line with one of the international trade agreements the UK is a party to.

‘Service suppliers’ are defined as contractual service suppliers employed by an overseas business, or self-employed independent professionals based overseas. 

Under the new provisions, applicants must:

• Have a certificate of sponsorship from a sponsor licenced for the strand, including a confirmation they will be paid at least the national minimum wage;
• Either be filling a job in an occupation listed as eligible for the GBM routes under Appendix Skilled Occupations, or have a university degree or equivalent technical qualification, subject to limited exceptions;
• Be working as or for the overseas service provider at the time of application and outside the UK for at least a cumulative period of 12 months; 
• Normally have at least three years’ professional experience in the sector they will be working in; and
• Meet certain requirements regarding being a national or permanent resident of the country they are based in.

Immigration permission under this strand will be granted for up to 12 months if the relevant international agreement being relied on is the UK-EU Trade and Cooperation Agreement or the UK-Swiss trade agreement, or up to six months in all other cases. 

Secondment Worker 

The Secondment Worker strand covers individuals being seconded to the UK as part of a ‘high value contract or investment by their overseas employer’.

Sponsorship must be provided by the UK business involved in the transaction, and the relevant contract must be registered with the Home Office. It is anticipated that the Home Office will assess the value of the contract at that stage.

A secondment worker also must:

• Have a certificate of sponsorship from a sponsor licenced for the strand, including a confirmation they will be paid at least the national minimum wage;
• Be filling a job in an occupation listed as eligible for the GBM routes under Appendix Skilled Occupations;
• Be working for the overseas business their sponsor has a Home Office-registered contract with at the time of application; and
• Have worked for the overseas business for a cumulative period of at least 12 months.

Immigration permission may be granted for up to one year initially and extended up to a maximum of two years. 

Secondment Workers may be accompanied by dependants, whereas the dependants of secondee visitors were previously granted leave outside the Immigration Rules.

The secondee visitor provisions that currently cover secondees from clients of UK export companies are not deleted under the Statement of Changes. So, for the time-being, these are still available for use where they are met.

We will be covering the HC 1118 Immigration Rule changes in detail in our upcoming Immigration Law Academy on 29 and 30 March 2022. For further information and to register, see here. Alternatively, please get in touch with a member of our Immigration Team for help with any queries.

Related Item(s): Immigration, Global Mobility

Author(s)/Speaker(s): Andrew Osborne, Supinder Singh Sian, Stephen OFlaherty, Li Xiang,

New Immigration Rules have recently been laid in Parliament, setting out the details of the Global Business Mobility routes. These replace the existing Intra-Company Transfer routes, the Representative of an Overseas Business provisions for sole representatives and the contractual service provider element of the International Agreement route. New provisions are also introduced for secondees whose employer has a high value contract or investment in the UK.

Text:

On 15 March 2022, the Home Office published a Statement of Changes in Immigration Rules, HC 1118. This includes a number of developments expected to be helpful for businesses seeking to facilitate knowledge transfer within an international group, to set up or expand a business in the UK, or to access a bigger pool of skilled talent from abroad. This article covers the Global Business Mobility routes, and we will cover other developments of interest to employers in a separate article.

Global Business Mobility routes (GBM)

The five Global Business Mobility (GBM) routes are due to be introduced from 9 am on 11 April 2022. They re-package and reform existing routes.

GBM migrants may only be granted immigration permission for up to five years in any six year period, with the exception of high earning senior or specialist workers (SSWs), who may be granted a maximum of nine years in any ten-year period.

Aside for some transitional arrangements for existing Intra-Company Transferees, GBM migrants will not be allowed to carry out supplementary employment. The policy logic of this appears to be that workers connected with international businesses should focus solely on the work tasks they have been brought to the UK to fulfil. 

Senior or Specialist Worker

The Senior or Specialist Worker (SSW) strand of the GBM routes reforms and replaces the Intra-Company Transferee (ICT) route. It is designed for use by senior managers and specialist employees of an international group business who are being transferred to one of the group’s UK businesses.

Many of the elements of the ICT route are carried over from ICT, including that the minimum skill level is Regulated Qualifications Framework (RQF) Level 6 (graduate level equivalent) and that there is no English language requirement. SSWs must be working for the sponsor group at the time of application, and have worked for the group abroad for at least 12 months unless they are a high earner.

Certain occupation codes for creative occupations are removed as follows:

• 3411 Artists
• 3412 Authors, writers and translators
• 3413 Actors, Entertainers and presenters
• 3414 Dancers and choreographers
• 3422 Product, clothing and related designers

Although applicants under these codes will be able to extend their stay under transitional arrangements, new applicants will need to use either the Skilled Worker or Temporary Work – Creative Worker routes instead. This will require their sponsor to have a sponsor licence under the relevant route.

Although the Migration Advisory Committee (MAC) recommended this route should lead to settlement, the Home Office has rejected this. However, in line with the MAC’s suggestions, the minimum salary threshold is raised from £41,500 to £42,400 and the high earner threshold of £73,900 is maintained. 

The maximum grant of immigration permission under this strand is five years after the start date of the UK assignment, and subject to the overall maximum grant periods for the GBM routes.

Because the skill level and bar to settlement for SSWs is the same as it was for the ICT route, we anticipate a continuation of the trend for global businesses to apply for and hold Skilled Worker sponsor licences in addition to licences under the GBM routes. Doing this enables them to transfer certain employees whose occupation skill level is between RQF Level 3 and 5, or who wish to settle in the UK. Holding a Skilled Worker sponsor licence also leaves open the possibility of recruiting EEA/Swiss citizens who do not meet the requirements of the GBM routes. 

Graduate Trainee

The new Graduate Trainee provisions reform and replace the Intra-Company Transfer Graduate Trainee route for work placements in the UK as part of a graduate training course leading to a senior management or specialist position within an international business. The minimum salary requirement is raised from £23,000 to £23,100. The salary must also be above 70% of the going rate for the relevant occupation, and the occupation must be listed as an eligible occupation for the GBM routes.

Graduate Trainees must have worked for the sponsor group for at least the three months immediately before the date of application.

The maximum grant of immigration permission under this strand is one year after the start date of the UK assignment, and subject to the overall maximum grant periods for the GBM routes.

UK Expansion Worker

The UK Expansion Worker strand replaces and expands the Representative of an Overseas Business provisions for sole representatives. People who already have immigration permission as a sole representative will still be able to extend in this capacity and settle, and the overseas media representative provisions also remain in place.

The new Rules for UK Expansion Workers will allow a team of key senior management or specialist employees of an overseas business with no trading presence in the UK to staff the set-up phase of a UK branch or wholly owned subsidiary, whereas the current provisions only allow for the transfer of one senior executive.

Unlike the sole representative provisions, the new GBM strand requires a sponsor and does not lead to settlement. Under the new provisions, there also is no prohibition on an applicant having a controlling interest in the overseas business.

Sponsor guidance is expected to be released shortly, and this should outline the criteria for sponsorship and how many workers can be sponsored under the strand. The MAC previously recommended a maximum of five workers. 

UK Expansion Workers must be paid at least £42,400 or the going rate for their occupation, whichever is higher. They must also have worked for a connected business of the sponsor abroad for at least 12 months unless they are a high earner or a Japanese citizen and the branch or subsidiary falls within the UK-Japan Comprehensive Economic Partnership Agreement.

Immigration permission may be granted for up to one year initially and extended up to a maximum of two years. 

In practice, individuals who come to the UK under this strand but ultimately aim to settle in the UK are likely to want to set up a Skilled Worker sponsor licence and switch into the Skilled Worker route as soon as possible. This is because time spent under the Expansion Worker strand cannot be counted towards the qualifying period for settlement in any other immigration category, including Skilled Worker.

The relevant businesses may also wish to set up a GBM SSW licence to facilitate the transfer of employees from group businesses abroad on a longer-term basis.  

Service Supplier

This strand reforms the Temporary Work – International Agreement provisions for service suppliers coming to the UK to provide services in line with one of the international trade agreements the UK is a party to.

‘Service suppliers’ are defined as contractual service suppliers employed by an overseas business, or self-employed independent professionals based overseas. 

Under the new provisions, applicants must:

• Have a certificate of sponsorship from a sponsor licenced for the strand, including a confirmation they will be paid at least the national minimum wage;
• Either be filling a job in an occupation listed as eligible for the GBM routes under Appendix Skilled Occupations, or have a university degree or equivalent technical qualification, subject to limited exceptions;
• Be working as or for the overseas service provider at the time of application and outside the UK for at least a cumulative period of 12 months; 
• Normally have at least three years’ professional experience in the sector they will be working in; and
• Meet certain requirements regarding being a national or permanent resident of the country they are based in.

Immigration permission under this strand will be granted for up to 12 months if the relevant international agreement being relied on is the UK-EU Trade and Cooperation Agreement or the UK-Swiss trade agreement, or up to six months in all other cases. 

Secondment Worker 

The Secondment Worker strand covers individuals being seconded to the UK as part of a ‘high value contract or investment by their overseas employer’.

Sponsorship must be provided by the UK business involved in the transaction, and the relevant contract must be registered with the Home Office. It is anticipated that the Home Office will assess the value of the contract at that stage.

A secondment worker also must:

• Have a certificate of sponsorship from a sponsor licenced for the strand, including a confirmation they will be paid at least the national minimum wage;
• Be filling a job in an occupation listed as eligible for the GBM routes under Appendix Skilled Occupations;
• Be working for the overseas business their sponsor has a Home Office-registered contract with at the time of application; and
• Have worked for the overseas business for a cumulative period of at least 12 months.

Immigration permission may be granted for up to one year initially and extended up to a maximum of two years. 

Secondment Workers may be accompanied by dependants, whereas the dependants of secondee visitors were previously granted leave outside the Immigration Rules.

The secondee visitor provisions that currently cover secondees from clients of UK export companies are not deleted under the Statement of Changes. So, for the time-being, these are still available for use where they are met.

We will be covering the HC 1118 Immigration Rule changes in detail in our upcoming Immigration Law Academy on 29 and 30 March 2022. For further information and to register, see here. Alternatively, please get in touch with a member of our Immigration Team for help with any queries.

Related Item(s): Immigration, Global Mobility

Author(s)/Speaker(s): Andrew Osborne, Supinder Singh Sian, Stephen OFlaherty, Li Xiang,

From Friday 18 March 2021, individuals will be able to act as sponsors for Ukrainian refugees and their immediate family members, if they are willing to offer them a room in their home or separate self-contained accommodation for a minimum period of six months. Details for sponsorship by businesses and other organisations will be released at a later date.

Text: A Homes for Ukraine campaign page and a Frequently asked questions resource were published on Monday 14 March 2022.

How does the scheme work?

This is a sponsored scheme and is open for applications from 18 March 2022. It is intended for Ukrainians who do not have family ties to the UK such that they are eligible under the Ukraine Family Scheme. There is no cap on the number of people who can participate, other than that there must be a sponsor that they have matched with.

Applicant eligibility

To be eligible, an applicant must be a Ukrainian citizen or the immediate family member of a Ukrainian citizen, and resident in Ukraine immediately before 1 January 2022. Applicants will have security checks undertaken as part of the application process.

Sponsor eligibility

Initially sponsors under the scheme must be individuals who are able to offer a spare room or separate self-contained accommodation to a Ukrainian refugee and their immediate family. They must be able to offer a commitment of a minimum of six months. Security checks on the sponsor side will also take place as part of the immigration application process.

Intending sponsors can provide their details directly into the immigration application of a person they wish to support, seek to be matched with an individual or family through a charity or other organisation, or register their interest on a dedicated campaign website. Details of how organisations, including businesses, can participate as sponsors will be released in the future.

Individuals who already know who they wish to sponsor will need to supply their details to the applicant so that these can be entered into the application form(s) once these become available on Friday 18 March 2022. Those who do not will need to be matched with individuals, either through informal networks or in coordination with charities or other organisations.

The Frequently asked questions cover a range of common queries about the scheme and its development. It is possible to sign up to receive email alerts when this this page is updated.

Application process and grant

The initial information published by the Government suggests that the scheme will be available only for individuals who are applying from outside the UK. Successful applicants will be granted immigration permission for up to three years, with work and access to public funds being permitted. Integration and housing support will also be included for participants.

Applicants outside the UK must either attend a Visa Application Centre (VAC) and provide their biometrics and passport or other identity documentation if they have this available, or, if they have a valid Ukrainian international passport, they can apply online without attending a VAC. 

Those who apply via a VAC will receive a three-month entry clearance vignette, which will be placed in their passport if they have one, or may be issued on a free-standing letter. They will then be issued with a biometric residence permit (BRP) once they have arrived.

Those who apply online from outside the UK will receive an initial letter allowing them to enter the UK. They will be granted six months’ immigration permission by an immigration officer on entry and will then need to make a further application for immigration permission of up to three years duration. The in-country application will involve submitting an online application within six months of arrival and enrolling their biometrics at a UKVCAS service point. A BRP will be issued following approval.

Further clarification is awaited on whether initial in-country applications will be possible, e.g. from individuals already in the UK as a visitor. 

Issues for individual sponsors to consider

This scheme has been developed at pace. The full implications of it and the support that will need to be offered to sponsors and participants has not yet been fully elaborated. One significant area the Government will need to address is access to adequate housing once sponsorship is no longer available, or if the sponsored accommodation is not large enough for family reunification. This is likely to be a significant possibility due to some family members currently remaining in Ukraine to serve in the armed forces or in essential occupations. 

There are also property-related aspects to consider, some of which are explored here.

Further communications from the UK Government will be forthcoming over the coming days and months. Sponsors should receive direct communications from the Government during and following the completion of the application process. In the meantime, they may wish to register their interest as an individual so that they can ensure they receive relevant general updates. 

From a practical perspective, aside from providing accommodation, sponsors will play a vital part in helping the people they host to access financial, healthcare, educational, English language and other immediate integration support.

Issues for employers to consider

Many employers are also considering measures aimed at assisting Ukrainian refugees and/or their families. 
 

Sponsoring or recruiting scheme participants

Details of how employers may be able to act as sponsors are not yet available. It is unclear if business sponsors will only be expected to provide or fund accommodation, or if they will be expected to offer something more extensive. Separately, a number of employers have formed a consortium to help connect Ukrainians arriving in the UK with employment opportunities. The current discrimination law framework restricts the scope for employers to discriminate in favour of some nationalities, or against other nationalities, in relation to recruitment. There are, however, a number of steps that employers could potentially take to support those escaping the war, including by donating to charities. Employers can also record their interest in directly sponsoring individuals to ensure that they are notified as soon as details of the business sponsorship route are released.

Right to work

Employers should be alert to the fact that the Homes for Ukraine and Ukraine Family Schemes are being processed in non-standard ways to facilitate the entry of eligible refugees into the UK as swiftly as possible. Some of the documents they will hold to evidence their right to work may be unfamiliar.

Evidence of immigration permission presented by a scheme participant could include:

• A visa vignette (sticker) endorsed onto a free-standing document
• A wet ink stamp in a passport giving immigration permission to enter the UK for six months, without any mention of no work or no recourse to public funds
• A BRP

COVID-19 adjusted manual right to work checks are in place up to and including 30 September 2022, and this process can be used for scheme participants with a visa vignette or wet ink stamp. Alternatively a fully compliant manual check can be completed.

Employers should note that from 6 April 2022, right to work checks for all BRP holders will need to be completed online. Some scheme participants may need assistance with generating the correct share code to enable an online right to work check to be carried out.

Switching into alternative immigration routes

The Homes for Ukraine scheme is generous in terms of it being a free immigration route with immediate access to work and public funds. However, it is not yet clear whether time spent in the UK with immigration permission under the scheme will lead to settlement, either on its own, or if it will be counted towards the continuous residence period under existing settlement routes. Immigration policy will need to respond to developments in the conflict in Ukraine as they arise. 

In the meantime, those who want the security of being able to settle in the UK may wish to switch into another UK immigration route they are eligible for, and it is open to employers to support this, e.g. for an employee who is eligible under the Skilled Worker route.

We will continue to provide updates on significant developments as they arise.

Related Item(s): Immigration

Author(s)/Speaker(s): Andrew Osborne, Supinder Singh Sian, Kathryn Denyer,

From Friday 18 March 2021, individuals will be able to act as sponsors for Ukrainian refugees and their immediate family members, if they are willing to offer them a room in their home or separate self-contained accommodation for a minimum period of six months. Details for sponsorship by businesses and other organisations will be released at a later date.

Text: A Homes for Ukraine campaign page and a Frequently asked questions resource were published on Monday 14 March 2022.

How does the scheme work?

This is a sponsored scheme and is open for applications from 18 March 2022. It is intended for Ukrainians who do not have family ties to the UK such that they are eligible under the Ukraine Family Scheme. There is no cap on the number of people who can participate, other than that there must be a sponsor that they have matched with.

Applicant eligibility

To be eligible, an applicant must be a Ukrainian citizen or the immediate family member of a Ukrainian citizen, and resident in Ukraine immediately before 1 January 2022. Applicants will have security checks undertaken as part of the application process.

Sponsor eligibility

Initially sponsors under the scheme must be individuals who are able to offer a spare room or separate self-contained accommodation to a Ukrainian refugee and their immediate family. They must be able to offer a commitment of a minimum of six months. Security checks on the sponsor side will also take place as part of the immigration application process.

Intending sponsors can provide their details directly into the immigration application of a person they wish to support, seek to be matched with an individual or family through a charity or other organisation, or register their interest on a dedicated campaign website. Details of how organisations, including businesses, can participate as sponsors will be released in the future.

Individuals who already know who they wish to sponsor will need to supply their details to the applicant so that these can be entered into the application form(s) once these become available on Friday 18 March 2022. Those who do not will need to be matched with individuals, either through informal networks or in coordination with charities or other organisations.

The Frequently asked questions cover a range of common queries about the scheme and its development. It is possible to sign up to receive email alerts when this this page is updated.

Application process and grant

The initial information published by the Government suggests that the scheme will be available only for individuals who are applying from outside the UK. Successful applicants will be granted immigration permission for up to three years, with work and access to public funds being permitted. Integration and housing support will also be included for participants.

Applicants outside the UK must either attend a Visa Application Centre (VAC) and provide their biometrics and passport or other identity documentation if they have this available, or, if they have a valid Ukrainian international passport, they can apply online without attending a VAC. 

Those who apply via a VAC will receive a three-month entry clearance vignette, which will be placed in their passport if they have one, or may be issued on a free-standing letter. They will then be issued with a biometric residence permit (BRP) once they have arrived.

Those who apply online from outside the UK will receive an initial letter allowing them to enter the UK. They will be granted six months’ immigration permission by an immigration officer on entry and will then need to make a further application for immigration permission of up to three years duration. The in-country application will involve submitting an online application within six months of arrival and enrolling their biometrics at a UKVCAS service point. A BRP will be issued following approval.

Further clarification is awaited on whether initial in-country applications will be possible, e.g. from individuals already in the UK as a visitor. 

Issues for individual sponsors to consider

This scheme has been developed at pace. The full implications of it and the support that will need to be offered to sponsors and participants has not yet been fully elaborated. One significant area the Government will need to address is access to adequate housing once sponsorship is no longer available, or if the sponsored accommodation is not large enough for family reunification. This is likely to be a significant possibility due to some family members currently remaining in Ukraine to serve in the armed forces or in essential occupations. 

There are also property-related aspects to consider, some of which are explored here.

Further communications from the UK Government will be forthcoming over the coming days and months. Sponsors should receive direct communications from the Government during and following the completion of the application process. In the meantime, they may wish to register their interest as an individual so that they can ensure they receive relevant general updates. 

From a practical perspective, aside from providing accommodation, sponsors will play a vital part in helping the people they host to access financial, healthcare, educational, English language and other immediate integration support.

Issues for employers to consider

Many employers are also considering measures aimed at assisting Ukrainian refugees and/or their families. 
 

Sponsoring or recruiting scheme participants

Details of how employers may be able to act as sponsors are not yet available. It is unclear if business sponsors will only be expected to provide or fund accommodation, or if they will be expected to offer something more extensive. Separately, a number of employers have formed a consortium to help connect Ukrainians arriving in the UK with employment opportunities. The current discrimination law framework restricts the scope for employers to discriminate in favour of some nationalities, or against other nationalities, in relation to recruitment. There are, however, a number of steps that employers could potentially take to support those escaping the war, including by donating to charities. Employers can also record their interest in directly sponsoring individuals to ensure that they are notified as soon as details of the business sponsorship route are released.

Right to work

Employers should be alert to the fact that the Homes for Ukraine and Ukraine Family Schemes are being processed in non-standard ways to facilitate the entry of eligible refugees into the UK as swiftly as possible. Some of the documents they will hold to evidence their right to work may be unfamiliar.

Evidence of immigration permission presented by a scheme participant could include:

• A visa vignette (sticker) endorsed onto a free-standing document
• A wet ink stamp in a passport giving immigration permission to enter the UK for six months, without any mention of no work or no recourse to public funds
• A BRP

COVID-19 adjusted manual right to work checks are in place up to and including 30 September 2022, and this process can be used for scheme participants with a visa vignette or wet ink stamp. Alternatively a fully compliant manual check can be completed.

Employers should note that from 6 April 2022, right to work checks for all BRP holders will need to be completed online. Some scheme participants may need assistance with generating the correct share code to enable an online right to work check to be carried out.

Switching into alternative immigration routes

The Homes for Ukraine scheme is generous in terms of it being a free immigration route with immediate access to work and public funds. However, it is not yet clear whether time spent in the UK with immigration permission under the scheme will lead to settlement, either on its own, or if it will be counted towards the continuous residence period under existing settlement routes. Immigration policy will need to respond to developments in the conflict in Ukraine as they arise. 

In the meantime, those who want the security of being able to settle in the UK may wish to switch into another UK immigration route they are eligible for, and it is open to employers to support this, e.g. for an employee who is eligible under the Skilled Worker route.

We will continue to provide updates on significant developments as they arise.

Related Item(s): Immigration

Author(s)/Speaker(s): Andrew Osborne, Supinder Singh Sian, Kathryn Denyer,

The Home Office has put in place immediate concessions and has announced new immigration schemes for Ukrainian nationals in response to the Ukraine conflict.

Text:

The information in this article is correct at 8 March 2022. The policy situation is still evolving, and the below GOV.UK website pages should be checked for the current position:

• UK visa support for Ukrainian nationals – GOV.UK (www.gov.uk)

• Apply for a Ukraine Family Scheme visa (www.gov.uk)

• Ukraine Scheme – GOV.UK (www.gov.uk)

• Local Sponsorship Scheme for Ukraine – GOV.UK (www.gov.uk)

• Ukrainian nationals on work and study routes: concessions to the Immigration Rules – GOV.UK (www.gov.uk)

• Ukraine: what you can do to help – GOV.UK (www.gov.uk)

• Ukraine travel advice – GOV.UK (www.gov.uk)

Additional measures outside of existing asylum/humanitarian protection laws

The current measures put in place by the British government in response to the specific situation in Ukraine include the following:

• The Ukraine Family Scheme

• The Local Sponsorship Scheme for Ukraine

• Concessions to the normal work and study Rules

Depending on an individual’s particular circumstances, they may also be able to make an asylum or humanitarian protection claim, however this is outside the scope of this article. Pro bono advice on this may be available through the Ukraine Advice Project UK or through advisers listed by the Refugee Council.

Ukraine Family Scheme

This scheme is intended for immediate and extended family members of UK-based sponsors. The immediate family members of extended family members can also apply.

The Home Office’s caseworker guidance for the scheme confirms that it now supersedes the concessions originally announced for UK family route applications from 14 February 2022, and that any outstanding applications made under those concessions will now be considered under the Scheme.

The caseworker guidance indicates that Immigration Rules for the scheme should be made effective from 16 March 2022, however at the time of writing no Statement of Changes in Immigration Rules has yet been published. Applications to the scheme are currently being granted outside the Immigration Rules.

Application process and grant

The application is free and no Immigration Health Charge is payable.

Successful applicants will be granted immigration permission for up to three years. They will be allowed to work and access public funds, but may be required to obtain permission under the Academic Technology Approval Scheme (ATAS) if they wish to study certain courses in the UK.

At the time of writing this scheme has only been set up for entry clearance applications. Applicants must attend a VAC and provide their biometrics and passport or other identity documentation if they have this available.

Full details of the in-country process will be forthcoming in the near future. Individuals intending to apply from within the UK can monitor Apply for a Ukraine Family Scheme visa – GOV.UK (www.gov.uk) for updates.

In the meantime, the Ukraine Family Scheme caseworker guidance does confirm that in-country applicants who apply as an overstayer or while they are on immigration bail will not be refused for these reasons under the scheme.

The Home Office has published application data on the scheme here.

Eligibility

The UK-based sponsor must be one of the following:

• A British citizen

• A person who is settled in the UK (this includes people with indefinite leave to remain or settled status under the EU Settlement Scheme)

• A person who has pre-settled status under the EU Settlement Scheme, and who started living in the UK before 1 January 2021

• A person with refugee status or humanitarian protection

The scheme cannot be used by family members of individuals with other forms of limited immigration permission in the UK.

An immediate family member of a UK-based sponsor is limited to:

• Spouse or civil partner

• Unmarried partner (this will be recognised where the couple have lived together for at least two years)

• Parent, where the UK-based sponsor is aged under 18

• Child aged under 18 of the UK-based sponsor

• Fiance(e) or proposed civil partner of the UK-based sponsor

An extended family member of a UK-based sponsor is limited to:

• Parent, where the UK-based sponsor is over 18

• Child who is over 18

• Grandparent

• Grandchild of the UK-based sponsor or the UK-based sponsor’s partner

• Brother or sister

• Aunt or uncle

• Niece or nephew

• Cousin

• Mother-in-law or father in-law

• Grandparent-in-law

• Brother or sister-in-law

An immediate family member of an extended family member is limited to:

• Spouse, civil partner or unmarried partner of an extended family member

• Child under 18 of an extended family member

• Parent of a child under 18 who is an extended family member

• Fiancé(e) or proposed civil partner of an extended family member

Some additional general stipulations are:

• The applicant must have been living in the Ukraine on or immediately before 1 January 2022 unless they are already present in the UK or are a child born or adopted on or after that date. From the online form, this is initially confirmed through self-certification. The caseworker guidance confirms that the starting point is that applicants will be believed if they self-certify, and notes that case workers can grant an application without the usual documentation. Evidence of residence can be submitted if available and the guidance sets out some examples. Caseworkers are instructed to ask for additional evidence if there is reason to believe the requirement is not met.

• The definitions of relationships set out in the caseworker guidance need to be met

• The relationship between a UK-based family member (or an extended family member) and their spouse, civil partner, fiancé(e) or proposed civil partner must have started before 1 January 2022

• An immediate family member of an extended family member must apply either at the same time as the extended family member or after the extended family member has been granted immigration permission under the scheme

There is scope for other family members who do not fit within the recognised categories to be granted immigration permission under the scheme where they can show there are exceptional circumstances. Applications for foster children will also be considered. As these types of application will be referred to more senior officials, processing of them may be slower than for other applicants.

Local Sponsorship Scheme for Ukraine

Specific details for this scheme are not yet available but it is intended for Ukrainians who do not have family ties to the UK.

Sponsors under the scheme can be:

• Communities

• Private individuals

• Local authorities

The scheme will be set up by the Department for Levelling Up, in coordination with the devolved administrations.

Immigration permission will be granted for an initial stay of 12 months, with work and access to public funds being permitted. Integration and housing support will also be included for participants.

EU Settlement Scheme Family Permit

The guidance on GOV.UK for applying to the Ukraine Family Scheme highlights that some eligible individuals may also be eligible to apply for an EU Settlement Scheme Family Permit. The Home Office asks individuals not to apply under both routes, and states that it will be possible to apply under the EU Settlement Scheme after arrival in the UK irrespective of which route is pursued for entry clearance.

It may be advantageous for this option to be taken up, because the EU Settlement Scheme leads to settlement, whereas at present it is not known whether the Ukraine Family Scheme will lead to settlement, and/or whether time spent in this category will be counted towards settlement under other settlement routes.

On the other hand, there is a known backlog for EU Settlement Scheme Family Permits, with some applications taking in excess of three months to decide. It will of course be critical for individuals to be able to reach the UK as soon as possible and it is not clear whether applying for an EU Settlement Scheme Family Permit will delay this process.

We have enquired with the Home Office about whether and how individuals displaced by the crisis in Ukraine can be prioritised if they apply for an EU Settlement Scheme Family Permit and have asked for information on this point to be published on GOV.UK.

Concessions to work and study routes

Ukrainian citizens and their dependent partners and children who either entered the UK before 24 February 2022 or made an entry clearance application before this date and have since arrived in the UK can access a range of concessions. These cover:

• Switching from one immigration category to another, where this would normally not be allowed under the Immigration Rules

• Document flexibility where an applicant provides a sufficient and reasonable explanation why they cannot provide a document that is normally required for their application

• Waiver of TB testing

• Extension of immigration permission for Seasonal Workers, HGV drivers and pork butchers to 31 December 2022

Other immigration routes

Ukrainian citizens are of course able to make an application under any other UK immigration category that is normally available.

Entering the UK

To-date the UK government has declined to waive the visa requirement for Ukrainian citizens. This means that Ukrainian citizens must normally have a UK visa in place before seeking to enter the UK.

The Ukraine Family Scheme caseworker guidance confirms that individuals who intend to enter the UK under the scheme must apply for entry clearance in this capacity.

However, individuals who arrive at a UK port who do not have the correct entry clearance but who meet the family relationship requirements for the scheme should be considered by Border Force for leave to enter the UK outside the Immigration Rules for a period of six months. They will then be able to apply in-country for the scheme once it has opened for in-country applicants.

This provision could benefit Ukrainian citizens or other eligible applicants who already hold a valid UK visa, either as a visitor or in another capacity, as well as non-visa nationals who are able to apply for UK immigration permission at the border. This is because leave outside the Rules is likely to be granted without many of the immigration conditions that would normally apply to visitors or other limited permission holders.

In theory it is possible under this policy for a visa national who arrives at a UK juxtaposed control point in France or Belgium to demonstrate their family relationship and request leave to enter outside the Immigration Rules, but recent press reports indicate this does not appear to be happening in practice.

Whether new visitor visa applications for Ukrainian citizens will be granted will depend on whether the Immigration Rules for visitors are met in full. This would include having an intention to leave the UK at the end of the visit and otherwise being a genuine visitor, so in the current circumstances it is unlikely that a person who has fled from Ukraine will be able to demonstrate this.

It is not yet clear how long it will take to process applications under the Ukraine Family Scheme or Local Sponsorship Scheme for Ukraine. In the meantime, affected individuals may need to stay in an interim location before proceeding to the UK. The available options for such individuals would need to be considered on a case-by-case basis.

As a general point, the Home Office always has discretion to grant immigration permission outside the Immigration Rules, so individuals may consider making a UK visa application relying on this discretion where, for example, they have compelling or compassionate reasons to advance.

Issues that need resolving

Various issues still need resolving, including whether immigration permission granted under the Ukraine Family Scheme or Local Sponsorship Scheme for Ukraine will lead to settlement or will be counted towards the qualifying period required for settlement in other immigration categories.

As issues come to light, these will be flagged to the Home Office for resolution. It is therefore anticipated that the Immigration Rules and guidance on the provisions available for Ukrainian citizens and their family members will be subject to frequent updating in the short to medium-term.

We will be keeping our clients updated on significant developments as they arise. If you have queries about these arrangements, please contact a member of our Immigration Team.

 

Related Item(s): Immigration

Author(s)/Speaker(s): Andrew Osborne, Supinder Singh Sian, Stephen OFlaherty, Kathryn Denyer,

The Home Office has put in place immediate concessions and has announced new immigration schemes for Ukrainian nationals in response to the Ukraine conflict.

Text:

The information in this article is correct at 8 March 2022. The policy situation is still evolving, and the below GOV.UK website pages should be checked for the current position:

• UK visa support for Ukrainian nationals – GOV.UK (www.gov.uk)

• Apply for a Ukraine Family Scheme visa (www.gov.uk)

• Ukraine Scheme – GOV.UK (www.gov.uk)

• Local Sponsorship Scheme for Ukraine – GOV.UK (www.gov.uk)

• Ukrainian nationals on work and study routes: concessions to the Immigration Rules – GOV.UK (www.gov.uk)

• Ukraine: what you can do to help – GOV.UK (www.gov.uk)

• Ukraine travel advice – GOV.UK (www.gov.uk)

Additional measures outside of existing asylum/humanitarian protection laws

The current measures put in place by the British government in response to the specific situation in Ukraine include the following:

• The Ukraine Family Scheme

• The Local Sponsorship Scheme for Ukraine

• Concessions to the normal work and study Rules

Depending on an individual’s particular circumstances, they may also be able to make an asylum or humanitarian protection claim, however this is outside the scope of this article. Pro bono advice on this may be available through the Ukraine Advice Project UK or through advisers listed by the Refugee Council.

Ukraine Family Scheme

This scheme is intended for immediate and extended family members of UK-based sponsors. The immediate family members of extended family members can also apply.

The Home Office’s caseworker guidance for the scheme confirms that it now supersedes the concessions originally announced for UK family route applications from 14 February 2022, and that any outstanding applications made under those concessions will now be considered under the Scheme.

The caseworker guidance indicates that Immigration Rules for the scheme should be made effective from 16 March 2022, however at the time of writing no Statement of Changes in Immigration Rules has yet been published. Applications to the scheme are currently being granted outside the Immigration Rules.

Application process and grant

The application is free and no Immigration Health Charge is payable.

Successful applicants will be granted immigration permission for up to three years. They will be allowed to work and access public funds, but may be required to obtain permission under the Academic Technology Approval Scheme (ATAS) if they wish to study certain courses in the UK.

At the time of writing this scheme has only been set up for entry clearance applications. Applicants must attend a VAC and provide their biometrics and passport or other identity documentation if they have this available.

Full details of the in-country process will be forthcoming in the near future. Individuals intending to apply from within the UK can monitor Apply for a Ukraine Family Scheme visa – GOV.UK (www.gov.uk) for updates.

In the meantime, the Ukraine Family Scheme caseworker guidance does confirm that in-country applicants who apply as an overstayer or while they are on immigration bail will not be refused for these reasons under the scheme.

The Home Office has published application data on the scheme here.

Eligibility

The UK-based sponsor must be one of the following:

• A British citizen

• A person who is settled in the UK (this includes people with indefinite leave to remain or settled status under the EU Settlement Scheme)

• A person who has pre-settled status under the EU Settlement Scheme, and who started living in the UK before 1 January 2021

• A person with refugee status or humanitarian protection

The scheme cannot be used by family members of individuals with other forms of limited immigration permission in the UK.

An immediate family member of a UK-based sponsor is limited to:

• Spouse or civil partner

• Unmarried partner (this will be recognised where the couple have lived together for at least two years)

• Parent, where the UK-based sponsor is aged under 18

• Child aged under 18 of the UK-based sponsor

• Fiance(e) or proposed civil partner of the UK-based sponsor

An extended family member of a UK-based sponsor is limited to:

• Parent, where the UK-based sponsor is over 18

• Child who is over 18

• Grandparent

• Grandchild of the UK-based sponsor or the UK-based sponsor’s partner

• Brother or sister

• Aunt or uncle

• Niece or nephew

• Cousin

• Mother-in-law or father in-law

• Grandparent-in-law

• Brother or sister-in-law

An immediate family member of an extended family member is limited to:

• Spouse, civil partner or unmarried partner of an extended family member

• Child under 18 of an extended family member

• Parent of a child under 18 who is an extended family member

• Fiancé(e) or proposed civil partner of an extended family member

Some additional general stipulations are:

• The applicant must have been living in the Ukraine on or immediately before 1 January 2022 unless they are already present in the UK or are a child born or adopted on or after that date. From the online form, this is initially confirmed through self-certification. The caseworker guidance confirms that the starting point is that applicants will be believed if they self-certify, and notes that case workers can grant an application without the usual documentation. Evidence of residence can be submitted if available and the guidance sets out some examples. Caseworkers are instructed to ask for additional evidence if there is reason to believe the requirement is not met.

• The definitions of relationships set out in the caseworker guidance need to be met

• The relationship between a UK-based family member (or an extended family member) and their spouse, civil partner, fiancé(e) or proposed civil partner must have started before 1 January 2022

• An immediate family member of an extended family member must apply either at the same time as the extended family member or after the extended family member has been granted immigration permission under the scheme

There is scope for other family members who do not fit within the recognised categories to be granted immigration permission under the scheme where they can show there are exceptional circumstances. Applications for foster children will also be considered. As these types of application will be referred to more senior officials, processing of them may be slower than for other applicants.

Local Sponsorship Scheme for Ukraine

Specific details for this scheme are not yet available but it is intended for Ukrainians who do not have family ties to the UK.

Sponsors under the scheme can be:

• Communities

• Private individuals

• Local authorities

The scheme will be set up by the Department for Levelling Up, in coordination with the devolved administrations.

Immigration permission will be granted for an initial stay of 12 months, with work and access to public funds being permitted. Integration and housing support will also be included for participants.

EU Settlement Scheme Family Permit

The guidance on GOV.UK for applying to the Ukraine Family Scheme highlights that some eligible individuals may also be eligible to apply for an EU Settlement Scheme Family Permit. The Home Office asks individuals not to apply under both routes, and states that it will be possible to apply under the EU Settlement Scheme after arrival in the UK irrespective of which route is pursued for entry clearance.

It may be advantageous for this option to be taken up, because the EU Settlement Scheme leads to settlement, whereas at present it is not known whether the Ukraine Family Scheme will lead to settlement, and/or whether time spent in this category will be counted towards settlement under other settlement routes.

On the other hand, there is a known backlog for EU Settlement Scheme Family Permits, with some applications taking in excess of three months to decide. It will of course be critical for individuals to be able to reach the UK as soon as possible and it is not clear whether applying for an EU Settlement Scheme Family Permit will delay this process.

We have enquired with the Home Office about whether and how individuals displaced by the crisis in Ukraine can be prioritised if they apply for an EU Settlement Scheme Family Permit and have asked for information on this point to be published on GOV.UK.

Concessions to work and study routes

Ukrainian citizens and their dependent partners and children who either entered the UK before 24 February 2022 or made an entry clearance application before this date and have since arrived in the UK can access a range of concessions. These cover:

• Switching from one immigration category to another, where this would normally not be allowed under the Immigration Rules

• Document flexibility where an applicant provides a sufficient and reasonable explanation why they cannot provide a document that is normally required for their application

• Waiver of TB testing

• Extension of immigration permission for Seasonal Workers, HGV drivers and pork butchers to 31 December 2022

Other immigration routes

Ukrainian citizens are of course able to make an application under any other UK immigration category that is normally available.

Entering the UK

To-date the UK government has declined to waive the visa requirement for Ukrainian citizens. This means that Ukrainian citizens must normally have a UK visa in place before seeking to enter the UK.

The Ukraine Family Scheme caseworker guidance confirms that individuals who intend to enter the UK under the scheme must apply for entry clearance in this capacity.

However, individuals who arrive at a UK port who do not have the correct entry clearance but who meet the family relationship requirements for the scheme should be considered by Border Force for leave to enter the UK outside the Immigration Rules for a period of six months. They will then be able to apply in-country for the scheme once it has opened for in-country applicants.

This provision could benefit Ukrainian citizens or other eligible applicants who already hold a valid UK visa, either as a visitor or in another capacity, as well as non-visa nationals who are able to apply for UK immigration permission at the border. This is because leave outside the Rules is likely to be granted without many of the immigration conditions that would normally apply to visitors or other limited permission holders.

In theory it is possible under this policy for a visa national who arrives at a UK juxtaposed control point in France or Belgium to demonstrate their family relationship and request leave to enter outside the Immigration Rules, but recent press reports indicate this does not appear to be happening in practice.

Whether new visitor visa applications for Ukrainian citizens will be granted will depend on whether the Immigration Rules for visitors are met in full. This would include having an intention to leave the UK at the end of the visit and otherwise being a genuine visitor, so in the current circumstances it is unlikely that a person who has fled from Ukraine will be able to demonstrate this.

It is not yet clear how long it will take to process applications under the Ukraine Family Scheme or Local Sponsorship Scheme for Ukraine. In the meantime, affected individuals may need to stay in an interim location before proceeding to the UK. The available options for such individuals would need to be considered on a case-by-case basis.

As a general point, the Home Office always has discretion to grant immigration permission outside the Immigration Rules, so individuals may consider making a UK visa application relying on this discretion where, for example, they have compelling or compassionate reasons to advance.

Issues that need resolving

Various issues still need resolving, including whether immigration permission granted under the Ukraine Family Scheme or Local Sponsorship Scheme for Ukraine will lead to settlement or will be counted towards the qualifying period required for settlement in other immigration categories.

As issues come to light, these will be flagged to the Home Office for resolution. It is therefore anticipated that the Immigration Rules and guidance on the provisions available for Ukrainian citizens and their family members will be subject to frequent updating in the short to medium-term.

We will be keeping our clients updated on significant developments as they arise. If you have queries about these arrangements, please contact a member of our Immigration Team.

 

Related Item(s): Immigration

Author(s)/Speaker(s): Andrew Osborne, Supinder Singh Sian, Stephen OFlaherty, Kathryn Denyer,

The Home Office announced the extension on 23 February 2022 via the GOV.UK website.

Text:

The guidance on Coronavirus (COVID-19): right to work checks confirms that adjusted right to work checks will remain in place until 30 September 2022 inclusive.

The Home Office plans to introduce new digital right to work checks from 6 April 2022, using Identification Document Validation Technology (IDVT). However, IDVT will only cover valid British passports and valid Irish passports (including passport cards), not any other physical documents that can form the basis of a compliant manual right to work check.

The extension of adjusted checks is a pragmatic measure that recognises the logistical difficulties employers would face if they had to return to manually checking original documents at the same time as IDVT is launched.

The updated guidance confirms:

• That there may be more than one provider of IDVT;
• That if employers choose to use IDVT, the extension period can be used to develop commercial relationships with an IDVT provider, to change pre-employment checking processes and to onboard the provider; and
• That employers can use the extension period to decide how best to return to full manual right to work checks while embedding their longer-term post-pandemic working model. 

There will be a fee payable for using IDVT, so some employers may prefer to return to fully compliant manual right to work checks rather than using this. 

Also, it will not be possible for manual right to work checks to be eliminated altogether unless the scope of IDVT is expanded. All employers will therefore need to ensure that adequate processes are put in place to carry out fully compliant manual right to work checks from 1 October 2022. 

Although identity verification can continue to be completed using a video call rather than a face-to-face meeting, from 1 October 2022 it will be necessary for an employer to be in possession of the proposed or existing employee’s original documents when carrying out a manual right to work check. Achieving this conveniently and securely may prove to be a challenge for some businesses, for example those intending to adopt a fully remote or hybrid working model on a permanent basis.

We will be including commentary on right to work check developments in our What’s happening in immigration law webinar on 27 April 2022, which you can sign up for here. If you have any queries about right to work checks, you can also get in touch with a member of our Immigration Team.

Related Item(s): Immigration, Right to Work

Author(s)/Speaker(s): Andrew Osborne, Supinder Singh Sian, Li Xiang, Tom McEvoy,

The route has been closed for initial applications from 16:00 GMT on 17 February 2022.

Text: A Statement of Changes to the Immigration Rules, CP 632 was published on 17 February 2022 and brought into immediate effect. This indicates the Home Office intended to avoid a last-minute surge in applications before the closure date.
 

Why has the route been closed?

The fundamental reason given by the Home Office in the Explanatory Memorandum accompanying the new Rules is that the economic benefit of the route to the UK is considered to be small, and insufficient to outweigh concerns that it can be exploited to transfer illicitly obtained wealth to the UK, and that it attracts the use of complex investment schemes that circumvent the route’s criteria for making genuine investments in the UK.

What impact does this have on individuals with outstanding applications?

Initial applications that are currently under consideration will be decided in line with the Rules in force on 16 February 2022.

Outstanding extension and settlement applications will also continue to be processed without any change to the criteria to be met.

However, due to the reasons for closing the route, applications may be delayed while the Home Office carries out additional checks.

What impact does this have for Tier 1 Investor extensions?

Tier 1 Investor migrants who wish to make an extension application can only do so up to and including 16 February 2026. 

Extension applicants applying from outside the UK will either need to have existing Tier 1 Investor immigration permission at the date of application, or to have held Tier 1 Investor permission within the 12 months immediately before the date of application. Extensions will be granted for two years.

What impact does this have for Tier 1 Investor settlement?

Settlement applications in the route must be made on or before 16 February 2028. 

Once the extension provisions for Tier 1 Investor fall away, individuals who cannot meet the requirements for settlement, for example due to not spending at least 180 days a year in the UK, or not being able to meet the English language and/or Life in the UK requirements, will need to find an alternative immigration category or depart the UK before their immigration permission expires. It will therefore be important for intending settlement applicants to plan ahead to ensure all the requirements can be met before the relevant deadlines.

What is the position for dependants?

There have been no changes to the Rules for Tier 1 Investor dependants. 

Eligible family members are still able to make applications to join Tier 1 Investor migrants, and will be issued immigration permission in line with the main applicant. 

Eligible dependants will also be able to extend, with no deadline, provided the main applicant still has immigration permission as a Tier 1 Investor migrant, or they have been granted settlement in that capacity or subsequent British citizenship.

Will there be an option for high net-worth migrants in the future?

The Explanatory Memorandum confirms that the Home Office intends to reform the Innovator route from Autumn 2022. Provisions will be introduced for individuals with a track record of investment activity abroad, and who can demonstrate credible plans to engage in qualifying investment activity in the UK. 

Further details of the Innovator option will be released at a later date, however a Home Office press release suggests that it will involve genuine job creation and other tangible economic benefits over and above passively holding UK investments. It is also highly likely that there will be very stringent checks on the source of investment funds.

If you have any queries about the implications of these changes, please get in touch with a member of our Immigration Team.

 

Related Item(s): Immigration

Author(s)/Speaker(s): Andrew Osborne, Supinder Singh Sian, Lily Shen, Li Xiang,