The Home Office has published preliminary information on the new technology employers will be able to use to make digital right-to-work checks for employees who are currently outside the scope of the existing online systems.

Text: This is contained in a policy paper, Identity Document Validation Technology in the Right to Work and Right to Rent Schemes, and DBS pre-employment checking, which was published on 27 December 2021.

What is Identity Document Validation Technology (IDVT) and what will it be used for?

During the pandemic, the Home Office introduced adjusted right to work checks, which have assisted employers to carry out their right to work checking responsibilities without having to handle physical documents. This has been well-received by employers, but the downside of the process is an increased risk of individuals being able to use fraudulent documents to secure employment.

Due to the permanent trend towards hybrid and remote working and pressure from employers, in September 2021 the Home Office agreed that it would be appropriate to end adjusted right to work checks after 5 April 2022, once a more secure long-term solution is in place to facilitate remote manual checks without the need for physical document handling.

IDVT is the digital tool the Home Office intends to make available after adjusted right to work checks end. The new tool will allow individuals who are not able to access existing online right to work checks, such as British and Irish citizens, to upload images of their physical right to work documents and have these analysed remotely to verify their identity.

IDVT will also be used to carry out right to rent and Disclosure and Barring Service (DBS) checks.

The tool will be offered by one or more private sector identity service providers, who will have to apply for and receive certification under the government’s UK Digital Identity and Attributes Trust Framework. Details of the certification process are due to be released later this month.

When will IDVT be available?

Enabling legislation is due to be in effect from 6 April 2022, so this is the earliest date the technology can go live.

Intending service providers will only have a short timeframe to complete the certification process, and it is not yet known whether the technology itself will be ready to deploy by 6 April 2022. If IDVT is not ready on time, it is highly likely that adjusted checks may be extended for a further period.

What will using IDVT cost?

Although it seems clear that individuals will interact with the tool to upload their documents, no details have been provided yet on how employers will access it, and what the cost will be. It seems most likely that any cost will be borne by employers.

The use of private sector identity service providers and a user-pays system is likely to prove controversial as it will create a two-tier system of free online right to work checks and paid-for IDVT checks.

Will manual right to work checks still be allowed?

On 17 December 2021, the Home Office confirmed it will not be possible to do manual right to work checks on biometric residence permits, biometric residence cards and frontier worker permits after 5 April 2022. For further information on this change, see our article here. 

It is not yet clear what other changes to manual right to work checks will be made due to the introduction of IDVT, including whether or not there will still be the option to carry out a manual check where right to work can be verified using IDVT. It would seem sensible to retain this capability, particularly if using IDVT will incur a charge.

In the first instance, we will need to see the detail of regulations due to come into effect from 6 April 2022, but the general trend at the Home Office is to move towards using digital processes wherever possible (see detailed information on this here). 

Need more information?

We will be monitoring further developments and will provide updates once further details are available. 

We are also running our next Immigration Law Academy on 29 and 30 March 2021, which includes a detailed analysis of the current and upcoming requirements for right to work checks. For further information and to register, click here.

If you have any specific queries around these changes or right to work requirements, please 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 Covid-19 pandemic continues to dominate the agenda, but employers can still expect both legislative and caselaw developments across all areas of employment law.

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This article looks at the key expected developments in England and Wales in the coming year and ends with a summary of what to expect in Northern Ireland. For expected developments in immigration law, see our separate article here.  

Covid-19 developments

As the pandemic continues, it is unclear if the government will bring in new restrictions but we certainly expect more employment law issues. A key question for 2022 is whether more employers will introduce mandatory vaccination, testing or NHS Covid pass policies. We also expect more court rulings about the furlough scheme and Covid-19 safety at work (see Employment Tribunal rulings on Covid 19 issues what can we learn). The first cases to reach the appellate courts will inevitably involve events that happened in the early days of the pandemic, but lawyers will be scrutinising decisions carefully to see what guidance can be extracted for today’s different circumstances. 

We could also start to see litigation against employers who’ve implemented “no jab no job” policies, although the ET system is currently so backlogged that these may not reach appellate courts in 2022. It’s interesting to look at the position in other countries where the system is faster – for example France already has a body of caselaw on mandatory vaccination –  Refusing COVID-19 vaccination: a first view from the French courts.  Might we also see some published rulings on when “long Covid” is a disability for equality law purposes? 

ESG, good work and flexibility

Last year saw environmental, social and governance (ESG) issues emerge as a key focus for organisations across multiple sectors (see here for support with this).  Employers looking to stay on top of the ESG agenda in 2022 will need to factor in several potential employment law changes. 

Flexible working

The delayed Employment Bill – originally promised in the 2019 Queen’s Speech – could be published in 2022 and is expected to include a new right to request flexible working from day one. The government’s consultation on this proposal closed in December 2021 so we can expect confirmation of the final plans in 2022, even if we do not see the Bill. The proposed legal reforms are modest, but they form the backdrop to discussions about “new normal” working arrangements as employers look to codify practices in the coming year.

Good work

The Employment Bill is also expected to progress the Good Work agenda, by introducing a new right for workers with variable hours to request a more stable and predictable contract after 26 weeks’ service and, possibly, new rights to reasonable notice of working hours and compensation for short-notice shift cancellation. The EU transparent and predictable working conditions directive will introduce similar rights on an EU-wide basis in August 2022.

Pay and holidays

There will be an extra public holiday in 2022 (Friday 3 June) to mark the Queen’s platinum jubilee, and the late May bank holiday has been moved to Thursday 2 June to make a four-day weekend. 

Holiday pay calculations are always a headache but seem to have been less of a concern in recent years. We expect judgment in two cases in 2022, however, which may put holiday pay calculations back in the spotlight:

• Harpur v Brazel – concerning holiday pay for a casual worker who was under contract all year round but worked in term time only. The judgment could potentially clarify various holiday pay rights including the practice of paying a holiday pay supplement of 12.07% for casual workers.
• Smith v Pimlico Plumbers – concerning the extent of an employer’s liability for holiday backpay in circumstances where the individual was treated as self-employed but was subsequently found to be a worker with entitlement to paid holidays.

The National Living Wage (for workers aged 23 and over) is set to rise to £9.50 an hour from April 2022, an increase of 6.6%. Adding to the ongoing pressure on wages, the social care levy will be introduced UK-wide from April 2022 and will be collected initially via a 1.25% increase in National Insurance Contributions. The Employment Bill may also introduce the long-awaited tips regulations governing how tips are to be distributed. There will, of course, be the usual uplifts to statutory rates and limits, including statutory sick pay and maternity pay, in April 2022.

Whistleblowing 

EU member states are almost all late in implementing the EU whistleblowing directive, so most will be doing so throughout 2022.  The directive does not apply to the UK but looks set to influence best practice here. Its key feature is the requirement to provide feedback to whistleblowers within certain specified timescales.

Modern Slavery Act

We expect reforms strengthening the Modern Slavery Act to implement the plans announced in September 2020. When these are introduced, which could be in the coming year, companies in scope of the current reporting requirements may need to pay even closer attention to their anti-slavery statements as a result. This comes at a time of growing interest in supply chain governance as part of the ESG agenda. 

Diversity and inclusion 

Diversity, equity and inclusion will no doubt remain high on the agenda, whether as part of ESG initiatives or separately. Diversity monitoring and positive action are key topics for many employers right now. Employers often try to stay ahead of the law in this area, and there could be significant developments in 2022.  

Harassment

The government has promised to introduce a new proactive duty on employers to prevent sexual harassment in the workplace and to bring back laws making employers responsible if employees are harassed by customers or other third parties. Provision could be made in the Employment Bill for these changes. The Equality and Human Rights Commission may start consulting on its new Code of Practice on Harassment, building on the major guidance it published shortly before the Covid-19 pandemic. The upshot could be a step change in how employers are required to manage the risks of harassment in a post #Metoo world, but much turns on the detail. Do contact us if you would like help with training your team on this important area.

Legislation has also been promised on non-disclosure agreements (NDAs) since 2019. We still expect reforms to materialise, potentially in the Employment Bill.  

Pay transparency

The detailed rules governing gender pay gap reporting are set to be reviewed in 2022. Changes could be on the cards but would probably be subject to consultation before being introduced. In the meantime, the deadlines for submitting reports are expected to return to normal this year, having been extended in 2021 because of the pandemic.

It is conceivable that we will see some progress towards the eventual introduction of ethnicity pay reporting. The March 2021 report by the Commission on Race and Ethnic Disparities did not support the introduction of compulsory ethnicity pay reporting, but calls for regulation are not going away; in fact they are arguably increasing. The first step – potentially in the coming year – is likely to be the publication of guidance for employers wanting to report on a voluntary basis.

At the end of 2021, the government launched a consultation on the potential introduction of disability reporting on a voluntary or even compulsory basis. The consultation is open until 25 March 2022, and the government currently says a response will be published by June. 

Gender identity

In last year’s landmark Forstater case, the Employment Appeal Tribunal (EAT) ruled that a belief that sex cannot be changed and a belief or lack of belief in gender identity are all protected by equality law.  Two similar cases involving “gender critical” beliefs may come before the EAT in 2022 (Higgs v Farmor’s school and Mackereth v DWP). These cases raise sensitive issues about how the law regulates the space between holding gender-critical beliefs (protected) and harassment of trans people (unlawful). We will be looking at these cases as part of our webinar on gender identity and inclusion on 31 March 2022 – look out for details coming soon.

Equal pay 

The equal pay claims brought by store workers at Asda, Tesco, Morrisons and other large retailers continue to progress through the courts. Rulings up to this point have confirmed that female store workers can compare themselves to male distribution depot workers. Subject to any further challenges on that issue, the courts will now focus on whether the relevant types of work are of equal value and, if so, whether paying different rates for them is justified.  We would not expect these cases to conclude in 2022 but we may see further rulings as they continue their journey.

Family rights

By August 2022, EU member states need to have implemented the EU work-life balance directive, which includes new baseline rights for carers and working parents. The UK does not need to implement this directive but has already promised to match the new rights for carers. Under the UK government’s proposals, working carers will be able to take up to 5 days’ carers leave each year to help them carry out their caring responsibilities, although this will be unpaid. The government published some detail on how this new right will operate in September 2021 and we expect the Employment Bill to pave the way for its introduction.

Unrelated to the EU directive, the UK government has promised a new right to 12 weeks’ paid neonatal leave for parents whose babies spend time in neonatal care units. The government has also promised to improve redundancy protection for pregnant employees and maternity returners by giving them priority for alternative employment opportunities if made redundant, with similar protections for parents returning from adoption or shared parental leave. All of these new rights are expected to be included in the Employment Bill.

Other developments

Out of the other developments expected in 2022, employers should watch out, in particular, for any progress in the following areas:

• Proposals for regulating non-compete clauses following the government’s 2020 consultation on this issue. Regulations implementing a ban on “exclusivity clauses” in contracts for low-paid workers may also be introduced, following a consultation on this issue last year.
• Single enforcement body. The primary intention is to defragment the current regime by combining the Employment Agency Standards Inspectorate, the Gangmasters and Labour Abuse Authority and HMRC’s National Minimum Wage Enforcement Team into one body. The idea is also to expand this new body’s remit into the enforcement of statutory sick pay, holiday pay for vulnerable workers and the regulation of umbrella companies, with other areas under consideration.  The Employment Bill will pave the way for its establishment, but it is likely to be some time before it is up and running. 

After a relatively quiet 2021 (Covid-19 aside), 2022 looks likely to bring an increased number of changes to employment law, especially if the Employment Bill is finally published.   Our regular webinar “what’s happening in employment law” on 11 May 2022 will provide an update on progress with these and other developments – look out for more details coming soon.

Northern Ireland 

Many of the developments covered above are relevant for Northern Irish employers including those relating to Covid-19, ESG, whistleblowing and diversity. In Northern Ireland we will certainly see more caselaw resulting from the pandemic such as the furlough scheme. We may also see developments in holiday pay when the courts begin deciding cases that were put on hold pending the outcome of the dispute in the landmark holiday pay claim in Chief Constable of the Police Service of NI v Agnew and others (which appears to have settled).

As we start 2022, apart from the usual updates to statutory rates and limits, the legislative landscape remains quiet in Northern Ireland. There are no significant proposals in place to amend existing laws and, in particular, no plans to introduce an Employment Bill. This is likely to remain the case at least until after the Assembly elections in May 2022. We may therefore see further divergence between the employment laws in England and Wales and those in Northern Ireland (see our article explaining the reasons for this divergence and outlining the key differences).  

During 2022 we could start to see developments in relation to the employment and equality aspects of the Protocol on Ireland/Northern Ireland, negotiated during Brexit – watch out for our article on this topic soon.  

Related Item(s): Employment

Author(s)/Speaker(s): Gemma Taylor,

The coming year includes some welcome pro-immigration reforms which should give businesses and individuals more options and a better user experience than currently.

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As a general direction of travel, the Home Office continuing its post-Brexit programme of policy and operational change, including elements of liberalisation, simplification and technological improvement. There are also some deadlines to be aware of. In this article we explore some of the main themes we expect to see across the year and where to go for more information or assistance. To find out about the employment law trends of 2022, read our article here.

New immigration routes

Three new immigration routes of interest to employers are due to launch in Spring 2022.

Global Business Mobility route

The Global Business Mobility Route will incorporate and reform the Intra-Company routes, the Representative of an Overseas Business route, visitor rules for secondees from overseas clients of UK export companies and the provisions for contractual service suppliers and independent contractors under international agreements.

This route will give global businesses more options for sending personnel to the UK. One big change is that intra-company transferees may once again be eligible to settle in the UK, giving employers more flexibility to transfer a group employee quickly without the need to meet an English language requirement, even where this is with a view to settlement.

Overseas businesses will also likely be able to send a team of up to five personnel to set up a branch or subsidiary in the UK, rather than just one.

The provisions for seconding personnel from overseas clients of UK export companies are likely to be more restrictive than the current visitor provisions, but will allow secondees to be joined by their dependants.

It is not clear yet what changes there may be for contractual service suppliers and independent contractors, but these are likely to be relatively small as this element has not been subject to a full review, and is broadly aligned to the requirements of the UK’s international commitments.

When using the new route, employers should be aware that it is likely to be subject, at least initially, to a high level of Home Office scrutiny and monitoring. This is in part due to previous concerns over potential abuse of skill level, reported salaries and allowances for Intra-Company Transferees. Also, the proposed team subsidiary element of the route is likely to be launched as a trial and will need to be evaluated.

Scale-up route

This will be an unsponsored route intended to enable highly-skilled and academically elite individuals to move to the UK to work at a recognised UK scale-up business. The route will lead to settlement.

Eligibility criteria for the route are anticipated to include the following:

• A job offer from an approved ‘scale-up’ business which has demonstrated to the Home Office an annual average revenue growth or employment growth of at least 20 per cent over a three year period, and a minimum of 10 employees at the beginning of that period;

• A UK salary of at least £33,000; and

• Meeting an English-language proficiency requirement.

Although this route will likely benefit a relatively small number of businesses and individuals, it will provide some SMEs with streamlined access to skilled workers to assist with the hypergrowth phase of their development.

New High Potential Individual route

This route is also expected to be unsponsored and to lead to settlement. Eligible applicants will not need to have a job offer to qualify, so employers will be able to engage holders of this visa without having to participate in the process of securing it.

The criteria for the route have not yet been made publicly available, however it will be geared towards certain internationally mobile individuals with high potential to contribute to the UK. Eligibility may be linked to having graduated from a ‘top global university’ but may also incorporate other, and possibly tradeable, points-based factors. It is very likely that an English-language proficiency requirement will be included.

Need more detailed information or assistance?

See our article analysing the recommendations of the Migration Advisory Committee for the Global Business Mobility route.

We have also produced an overview of how the International Agreement route can be used to sponsor contractual service suppliers.

All of the new routes will be covered in our Immigration Law Academy on 29 and 30 March 2022. You can sign up for this here or get in touch with a member of our Immigration Team for specific queries.

Sponsorship

Being on top of immigration sponsor requirements, compliance and system changes will be critical for UK businesses in 2022.

Many more employers now need a licence to sponsor EEA national workers following the end of free movement, and more generally to fill skills gaps presented by the worker shortages being experienced across most industry sectors. These employers may need assistance to assess and advise on their readiness to become a sponsor, and to check their compliance with sponsorship obligations once a sponsor licence is in place.

Longstanding sponsors are also needing to rely more heavily on their licences. They may therefore benefit from refresher training or mock audits to limit the risk their licence may be suspended or revoked.

New and established sponsors will also be grappling with the compliance aspects of remote working that have emerged due to the pandemic.

Separately, there is a high level of corporate mergers, acquisitions and other restructuring activity at present. Restructuring may have implications for sponsor licences, including the need to make reports to the Home Office and in some cases a requirement to apply for a new sponsor licence.

The Home Office has confirmed its ‘sponsorship roadmap’ that sponsor compliance visits will remain a priority as it reforms the sponsorship system over the next few years. Onsite visits have resumed after being discontinued during the early phases of the pandemic, and we can expect to see greater activity in this area following additional compliance officer recruitment.

Lastly, a rolling programme of IT transformation changes is also planned in the sponsorship sphere up to at least the first quarter of 2024. A new service, ‘Sponsor a Visa’ will launch in mid-2022 and will allow visa applicants to access a partly-populated online application form once the details of their role have been approved. Employers will need to be aware of this change and will likely need to adjust their internal processes accordingly.

Need more detailed information or assistance?

Take a look at our article for further information on the Home Office’s sponsorship roadmap. This is part of the Home Office’s broader digitalisation agenda, which you can read about here.

Our Immigration Team has a wealth of experience in advising on and assisting with sponsor licence applications and ensuring compliance. We can help you with any queries if you are new to the process, or if you need advice on remote working or other compliance issues.

As part of our Immigration Solutions for HR, our Immigration Team can also offer training, compliance guides and mock audits of your systems to identify any areas of risk, suggest improvements and prepare you for a real Home Office audit.

COVID-19

With the pandemic continuing for the foreseeable future, the Home Office will need to adjust its immigration policies in response to prevailing conditions affecting international travel and processing of immigration applications.

Although the Home Office has wound back immigration-related concessions and returned to business as usual as much as possible during 2021, the likely emergence of coronavirus variants during 2022

Need more detailed information or assistance?

We are continuing to monitor how the pandemic impacts UK immigration and will provide updates here.

Our Immigration Team is also able to assess rapidly changing pandemic-related travel requirements and restrictions both for the UK and other countries, and to provide timely advice on the implications and options for internationally mobile people.

Global mobility

The COVID-19 pandemic has undoubtedly encouraged businesses to look closely at possibilities to work and do business meetings remotely. However, ongoing international skills shortages combined with tax, social security, employment law and regulatory requirements mean that being able to recruit and mobilise international talent will remain key for businesses worldwide in 2022.

To ensure compliance with immigration laws in EEA countries, UK employers also need to keep pace with the evolution of how these countries are regulating the entry and stay of British nationals post-Brexit.

Need more detailed information or assistance?

Our international presence allows us to offer a 24-hour service to clients, with support being available through our Hong Kong office and our membership of the Ius Laboris alliance (the leading alliance of global human resources lawyers). With language expertise including Mandarin, Cantonese, Japanese, French, Azerbaijani and Russian, our team regularly helps companies transfer personnel for work or business worldwide.

Our article canvasses some of the issues associated with remote working abroad.

See the Ius Laboris Brexit Guide for International Employers, which covers business travel, frontier worker rights, employment permission and residence across 25 jurisdictions. To keep up-to-date on global mobility developments, you can subscribe to Ius Laboris’s Immigration & Mobility insights here.

We have also produced a factsheet on Schengen visas.

EU Settlement Scheme

Although the main EU Settlement Scheme application deadline was 30 June 2021, in 2022 applications will still need to be made for joining members, and to convert pre-settled status to settled status.

Making a late application for inclusion in the scheme may also be needed where it is identified that an eligible person has failed to apply on time. This may arise during a right to work check, or where a business is in the process of considering immigration routes for a new hire to enter the UK.

Need more detailed information or assistance?

See our article highlighting some of the action points and considerations associated with using the EU Settlement Scheme.

Our Immigration Team can help with both straightforward and complex EU Settlement Scheme applications. We can also assist with British citizenship applications for those who have been granted settled status.

Right to work

The Home Office’s temporary adjusted right to work check process that was introduced to address the logistical issues created by the COVID-19 pandemic is scheduled to end on 6 April 2022. Online checks for those with biometric residence cards, biometric residence permits and frontier worker permits will become mandatory from the same date. Employers will need to think about appropriate changes to internal processes to be able to manage right to work checks in a compliant manner.

In addition, employers must continue to be mindful of the appropriate steps to take on discovering that a prospective or existing employee failed to apply for status under the EU Settlement Scheme on time, despite being entitled to do so.

Need more detailed information or assistance?

An overview of what is due to change on right to work checks from 6 April 2022 is covered in our article here. We have also produced an article on the process to follow in respect of the right to work for individuals who have made a late EU Settlement Scheme application or who need to do so.

Our Immigration Solutions for HR provide a full overview of the requirements for right to work compliance. We offer training and e-learning courses on right to work checks to help upskill your team and a handbook which can be used as a learning tool.

We can also help to update your internal policies and recruitment documents to ensure they are in line with the new right to work check requirements from 6 April 2022.

Amendments to family, private life and settlement routes

The Independent Chief Inspector for Borders and Immigration is undertaking an inspection into the processing of family visas, which is due to be delivered in 2022. The Home Office has also confirmed that simplification of the family, private life and settlement routes is planned, which will likely be timed to take the inspection findings into account. Although no clear date has been identified for the amended Rules to come into effect, engagement with stakeholders suggests it is likely to be in Autumn 2022.

Simplification and reform of these routes may be beneficial for employers as it may provide a more streamlined, flexible and cost-effective option than employer sponsorship for some individuals. It may in some cases be an alternative option where a prospective employee is not eligible for sponsorship.

Need more detailed information or assistance?

See our commentary on the Home Office’s strategy statement on legal migration and border control, including the planned reforms to the family, private life and settlement routes.

We will be monitoring developments in this area throughout 2022 and will publish further information once it becomes available. In the meantime, our Immigration Team can be contacted directly for any queries or to assist with applications under these routes.

Visitor visa reform

It is possible that the Home Office will review visitor visa arrangements during 2022, in line with a recommendation from the Migration Advisory Committee to consider accommodating time-limited essential work travel to the UK within these.

Need more detailed information or assistance?

See the discussion of how the visitor Rules may be revised to accommodate short-term assignments in our article here.

Our Immigration Team can assess whether planned activities fall within those allowed for visitors, or whether work permission is required. We can also assist with making visa applications as appropriate.

 

Related Item(s): Immigration & Global Mobility

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

The Home Office has announced that from 6 April 2022, the right to work of those who hold a biometric residence card (BRC), biometric residence permit (BRP) or frontier worker permit (FWP) can only be done online.

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Notification of the change was made on 17 December 2021 in a new Appendix E to the Employer right to work checks supporting guidance (otherwise known as An Employer’s guide to right to work checks), and via direct email to stakeholders.

A corresponding change is also being made in relation to right to rent checks.

What will employers need to do from 6 April 2022?

From this date, employers must carry out a check for individuals holding a BRC, BRP or FWP using the Home Office’s online right to work check service. It will no longer be an option to complete a manual right to work check using a physical BRC, BRP or FWP.

The employer must have the individual’s date of birth and a valid right to work share code that the individual has generated by accessing the online system for individuals. The share code is valid for 30 days.

It will not be necessary for employers to carry out a retrospective check for employees where a manual check was completed on or before 5 April 2022.

As always, employers must be careful to ensure they carry out the initial right to work check before the date the employment is due to commence, and the follow-up right to work check in line with the timings set out in the Employer right to work checks supporting guidance.

Why has the Home Office announced this change?

The announcement has been made now to give employers early notice that they will need to change their right to work check processes.

Before 6 April 2022, there are good reasons why employers may consider inviting, but not requiring, a BRC, BRP or FWP holder to allow the employer to carry out an online check rather than a manual one.

Checking BRCs

Currently, a BRC can only be accepted for a manual right to work check where the employer is satisfied the holder has status under the EU Settlement Scheme. The simplest way to verify this is to carry out an online right to work check.

Checking BRPs

BRPs are issued to expire on 31 December 2024, even where an individual’s immigration permission is due to expire after this date. This is because the current encryption technology used in BRPs may need to be upgraded beyond this date. Carrying out an online right to work check avoids the necessity to schedule a follow-up check before the expiry date on the BRP where the person has limited immigration permission. A follow-up check is not required where an individual’s BRP states they have indefinite leave or settled status.

The Home Office was due to make an announcement during 2024 regarding what employers will need to do to verify right to work rights at the follow-up check, but it seems likely this will simply be to do an online check. In any event, employers may prefer to carry out online right to work checks for BRP holders wherever possible to minimise the number of follow-up checks they may need to do at the end of 2024.

Checking FWPs

In the vast majority of cases, FWPs are issued electronically, so the option to complete a manual check on a physical permit will be rare.

What other announcements are expected?

COVID-19 temporary adjusted right to work checks are due to end from 6 April 2022. We are anticipating that the Home Office will make an announcement before this date regarding whether these will need to be extended further. This will likely depend on the readiness of a tool they are developing to enable employers to check the right to work of more people online, including British and Irish citizens.

Regulations will need to be laid before 6 April 2022 to implement the removal of BRCs, BRPs and FWPs as acceptable right to work documents. The regulations may also include changes to manual checks brought about by the availability of the new tool if this is ready to be rolled out by then.

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

 

Related Item(s): Immigration & Global Mobility

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

In this article, we look at some examples of the UK’s immigration and nationality digitalisation programme, focusing on the implications for migrant workers, their sponsors, and business visitors.

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The Home Office’s immigration and nationality services – digital by design

The Home Office’s Digital, Data and Technology (DDaT) team is responsible for improving the overall business efficiency of the department through the development of digital technologies. It was set up in 2016 and is responsible currently has 3,800 staff associated with it across the UK.

Under the current DDaT strategy, the Home Office aims to ‘become digital by design’ in everything it does to deliver its policies. This includes using automation, investing in cyber capabilities and focusing on data to manage the department both strategically and operationally.

Digitalisation has been actively pursued the immigration and nationality sphere in recent years, ahead of other areas of the department. This is set to continue across the Home Office according to the following principles:

1. Converging technologies where possible

2. Creating shared technology products

3. Being product-centric over programme-centric

4. Becoming data-driven to improve the Home Office’s decisions

5. Delivering effectively at scale

6. Embracing innovation

These principles can be seen in action in the Home Office’s recent and planned innovations for how migrants make applications and have them assessed, and how they prove their status once granted.

Making and assessing applications

The digitalisation of immigration and nationality application processes is creating significant change in terms of data access, security and privacy. As a general trend, it should improve user experience. It will also provide the Home Office with a huge pool of data to store and analyse.

Applying to enter the UK

Currently visitors to the UK (including business visitors) must make a formal visa application abroad if they are a visa national, or seek entry at the border if they are a non-visa national. Certain non-visa nationals are eligible to use eGates and are not routinely formally examined by a Border Force official.

The Home Office plans to implement Electronic Travel Authorisations (ETAs) for all non-visa nationals visiting or transiting the UK as an additional pre-arrival security measure, as well as replacing physical visitor visas with a digital status record, or ‘e-visa’. Visa nationals who are currently eligible to obtain an Electronic Visa Waiver (EVW) will continue to be able to use an EVW. British and Irish nationals, as well as those who have British citizenship in the Crown Dependencies or British Overseas Territories will remain outside the scope of pre-arrival arrangements.

To make these changes effective, substantial systems development work still needs to be undertaken. This will need to cover the ETA application process, as well as replacing or upgrading two old systems that flag individuals of interest for security reasons and that analyse passenger information from a security perspective. Some of this work falls under the Digital Services at the Border programme, which is due to be delivered by the end of March 2022. Communications and training will also be necessary for air, maritime and rail carriers, as they will need to administer pre-departure checks. The new arrangements will be trialled ahead of a full rollout, with initial testing scheduled to take place by autumn 2021.

Anticipated implications of these changes include:

• More security and less likelihood of delays or refusal of entry for visitors at the border (although there will still be checks on visitors’ intentions);

• Additional administration and small fee charges for those who need to use the ETA system; and

• The need for assurances on security of data and privacy, with the UK government collecting and retaining data for a much larger cohort of people than currently.

Online immigration and nationality application forms and sponsorship system

Online application forms have been a feature of UK immigration and nationality applications for some years now, however the post-Brexit immigration system is intended to become fully digital. This will include a roadmap to transform the Home Office IT systems used by sponsors of workers and students.

The Home Office is in the process of decommissioning legacy case working and other systems and is working on a shared form-building and hosting solution that it may produce within the department rather than through using an external provider. This latter change should enable the Home Office to design, prototype and deploy forms that meet their Accessibility Standard more quickly and cost-effectively than currently. Taking this work in-house would also allow small, iterative improvements to be made quickly to address identified issues.

Possible implications of having a fully digital application form set and IT system for sponsors include:

• Pressure to minimise the number of Statements of Changes in Immigration Rules brought forward each year, as this will in turn minimise the cost of rework to online application forms and associated guidance;

• The need to develop worldwide functionality, including mobile device-enabled functionality, to allow applicants to upload supporting information and documents securely and transparently (including eliminating the need to send supplementary documents by unsecured email);

• Further movement towards verifying information relied on by applicants and sponsors using self-certification, direct verification with third parties (eg employers), and checking data from previous applications, data shared between government departments and data exchanged across governments;

• Permanent movement away from submitting paper supporting documents (eg for sponsor licence applications);

• The availability of a quicker, more environmentally-friendly system through avoiding the use of paper, and removing the need to submit applications by physically travelling or using couriers or postal services;

• Greater capability for adopting decision-making tools and automating case working functions, subject to this meeting the Algorithmic Transparency Standard the Government is currently developing, and including careful consideration of factors such as avoiding potential unconscious bias and race discrimination in the design of these;

• Better access for applicants to their data, through subject access requests that are generated through drawing on integrated case working systems and are not reliant on the retrieval of paper-based archived files;

• The need to properly engage with and address issues such as digital poverty, lack of digital skills and language barriers through measures such as appropriate and easily-accessible assisted digital support worldwide (this is currently only available on a limited basis in the UK).

Identity verification

In late 2018, an identity verification app was used for the first time as part of the rollout of the EU Settlement Scheme (EUSS). This enabled millions of EEA nationals and some of their non-EEA family members to enrol their biometric data using a smartphone rather than attending a government-authorised facility.

The availability of this technology assisted with re-starting in-country immigration application processing for routes other than EUSS, after biometric enrolment centres were forced to close due to the COVID-19 pandemic.

A separate identity verification app was made available to support the implementation of the post-Brexit Points-Based Immigration system. It is currently available for use by a limited range of nationals and only in certain immigration routes, but the Home Office’s intention is to widen its use over time. Before 30 November 2021, individuals using the app could not access priority processing options, however this is now possible.

The Home Office is also considering how biometric data are enrolled and retained. The Identity section of the New plan for immigration: legal migration and border control strategy statement includes a proposal to require fingerprints to be captured once and then reused, with facial biometrics being recaptured periodically using an identity verification app. This potentially could mean applicants do not have to enrol their biometric data more than once, however longer data retention times raise potential data privacy concerns. Some of the concerns over data handling may be mitigated in the future through the Home Office using its own identity verification apps and controlling the data from the outset, rather than using third party commercial partners in visa application centres to collect and transfer it.

The net result of changes to identity verification is likely to be quicker application processing and movement through the border for migrant workers and business visitors. Other implications and outstanding issues to address include:

• The need to consider how automated allocation of National Insurance numbers can be integrated into the process for work routes where an identity verification app is used;

• Reduced need to use visa application centres and in-country biometric enrolment facilities;

• Potential to link biometric records to processes required for immigration applications such as English language testing, verification of qualifications, health testing such as TB screening etc, which would reduce potential for impersonation and document fraud;

• Increased need to ensure adequate governance around the collection, reuse and retention of biometric data (this may be addressed under planned reforms to the UK’s data protection regime); and

• Less risk of misidentification of an individual when the Home Office is carrying out enforcement activities.

Proving status

The general direction of travel in this area is toward the exclusive use of digital status, with plans to make this a reality by the end of 2024.

The technology used for people to be able to verify their status under the EUSS (the View and Prove service) is now being expanded to other routes. Although the EUSS system has been hailed as a success, initial case inception and finalisation may have been prioritised, with other aspects of the system yet to have been properly developed. Current problems include the possibility of one individual having multiple live immigration records, and their current immigration status not being verifiable by default on the online right to work checking system when they have an extension or settlement application in process. This can be corrected, but only by the individual making a request to the Home Office.

The replacement of physical immigration documents with digital status has many benefits, including eliminating the logistical and security issues that currently are associated with entry clearance vignettes and biometric identity documents.

Also, the planned automated capability to update an individual’s digital status record every time they cross the UK the border will enable the Home Office to accurately pinpoint if they are inside or outside the UK and for how long (see para 66 of the Home Office’s strategy statement). This could streamline the assessment of residence for settlement and nationality purposes, as well as enabling the sharing of residence information with other government departments when they are considering eligibility for services and benefits. Digital status could also facilitate contactless border crossing.

Some broader implications and issues relating to the adoption of digital status include:

• The need to have a communications and education strategy to ensure UK digital immigration status is easy to access and is accepted in all cases where proof of status is required (e.g. at present, some individuals are not confident with using online systems, and foreign governments will not accept UK digital status as sufficient proof when considering visa applications for their country);

• The need to build in safeguards to ensure migrant records are not duplicated and individuals can easily access their immigration history and current immigration status in one place;

• The need for reminder or other mechanisms to prompt migrants to update their digital status record when their circumstances have changed (e.g. when they obtain a new identity document);

• The need for a clear and quick process for migrants to have data inaccuracies addressed (e.g. where their digital status record does not accurately record an individual’s work rights);

• The need to ensure stability of the availability of information on digital status to minimise the risk that system crashes, data loss or corruption could result in real-world impacts on individuals’ access to their rights and services; and

• The need for robust processes to re-establish immigration status where digital status data is lost, corrupted or requires updating.

The future of digitalisation in the immigration and nationality sphere

Digitalisation of the immigration and nationality system is not without controversy and significant work still needs to be done to ensure it operates smoothly, as the examples highlighted above demonstrate.

We can expect to see further evolution as the Home Office pursues successive iterations of the DDaT strategy, with a view to providing better services to both to direct and indirect users of the system.

No doubt new challenges and solutions will emerge as digitalised processes and products become more embedded as the norm. The Home Office is clear that it is now a ‘digital organisation’, so an exploration of, and reliance on, digital technology appears to be high priority for the foreseeable future.

Related Item(s): Immigration & Global Mobility

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

South Africa, Botswana, Eswatini, Lesotho, Namibia and Zimbabwe have been added to the COVID-19 travel red list for England from midday GMT on Friday 26 November 2021.

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The government has also made arrangements to ban direct flights for a short period of time and to reimplement hotel quarantine beyond this. The situation requires monitoring as further countries could be added in the near future.

What arrangements have been put in place?

Direct flights from the six countries to England have been banned between midday GMT on Friday 26 November 2021 and 4 am GMT on Sunday 28 November 2021.

From midday on Friday 26 November 2021, individuals who are not British citizens, Irish citizens or UK residents will not be allowed to enter England unless they have only transited the relevant countries airside in order to catch a connecting flight.

Between midday GMT on Friday 26 November 2021 and 4 am GMT on Sunday 28 November 2021, British citizens, Irish citizens and UK residents who have been in any of these countries within the last 10 days must follow additional guidance when completing their passenger locator form, quarantine at home for 10 days and take NHS PCR tests on day 2 and day 8 of their arrival.

British nationals, Irish nationals and UK residents who have been in any of the countries within the last 10 days and plan to arrive after 4 am GMT on Sunday 28 November must undertake pre-departure COVID-19 testing, complete a passenger locator form and book a quarantine hotel package including day 2 and day 8 COVID-19 PCR tests in advance of their arrival.

The relevant guidance on processing of visitor applications from these countries has not yet been updated, but it is anticipated visitor visa processing will be suspended.

Why have these measures been introduced?

A new SARS-CoV-2 variant B.1.1.529 (also known as the Nu variant) has been designated as a variant under investigation by the UK Health Security Agency. The variant has a large number of spike protein mutations and other mutations in comparison to the original strain that causes COVID-19 illness. Investigation needs to be undertaken to determine whether existing vaccines and treatments are less effective against the variant, as well as whether it is more transmissible.

Further guidance will be issued once investigations have progressed and any mitigations have been recommended. In the meantime, it is possible that further countries will be added to the red list as the variant spreads.

If you have queries about this development, please contact a member of the Immigration Team.

 

Related Item(s): Covid 19 – Coronavirus, Immigration & Global Mobility, Immigration

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

The Home Office is due to launch the new Global Business Mobility route in Spring 2022. Last month the Migration Advisory Committee (MAC) gave recommendations on certain aspects of the route, and these are currently under consideration by the Home Office. In this article we look at what we do (and don’t) know about the likely shape of the new category.

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What will the Global Business Mobility route cover?

It is intended to incorporate and reform the following provisions:

• Intra-Company Transfer (ICT)
• Intra-Company Graduate Trainee (ICGT)
• Representative of an Overseas Business
• Visitor provisions for clients of UK export companies
• Contractual service suppliers and independent professionals coming to the UK to carry out activities under international agreements the UK is a signatory to

As part of the design process for the new route, the Home Secretary commissioned the MAC to undertake a study on the ICT visa route in September 2020. The MAC was asked to review the ICT visa route to ensure that it is in compliance with the UK’s free trade agreements, as well as assessing its operation and effectiveness. Additionally, the Home Office asked the MAC to help in the design of future routes which would enable an overseas business to send a team of workers to the UK to establish a subsidiary or to deploy secondees to support a high-value contract for goods or services.

These recommendations from the MAC were published in a report on 13 October 2021 and will now be considered by the Home Office.

Intra-company Transferees

The Home Office is obliged to offer provisions for ICTs due to the UK’s obligations under the World Trade Organisation’s (WTO) General Agreement on Trade in Services (GATS) and other specific FTAs.

The ICT route is intended to enable senior managers and specialists to be transferred to the UK from linked entities abroad. Use of the route can help to bring new skills and innovation to the UK labour force.

The MAC made the following recommendations for ICTs:

• To make the ICT route a settlement route, and to allow time spent on the ICT route to count towards settlement in other settlement routes
• To continue to allow switching from ICT into other immigration routes
• To keep the minimum skills threshold at Regulated Qualifications Framework (RQF) Level 6 (bachelor degree equivalent)
• To slightly increase the minimum salary threshold from £41,500 to £42,500
• To keep the ‘going rate’ calculations the same as currently, and to require applicants to meet the higher of the minimum salary threshold or going rate for the occupation
• To retain the high earner salary threshold at £73,900
• To retain the requirement for eligible applicants to have worked for a group entity abroad for at least 12 months, unless the high earner threshold applies
• To continue to allow high earners to spend a total of 9 years in a 10-year period in the UK (for all other ICTs the maximum would remain at 5 years in a 6-year period)
• To update all salary thresholds annually
• To continue to count guaranteed allowances towards meeting salary thresholds, but to require a complete breakdown to be provided by sponsors, and for the Home Office to consider further monitoring of compliance to ensure allowances are in fact paid and are appropriately quantified.
• To continue to impose the Immigration Skills Charge (ISC) unless this is prohibited by a free trade agreement (FTA)
• Not to impose an English language requirement

Analysis

The biggest change is allowing ICT migrants to proceed to settlement in the UK. This will allow sponsors to retain ICT workers permanently in the UK if they choose. It will also give the workers more flexibility to decide whether they wish to remain in the UK or return abroad before reaching the maximum time allowed under the route.

If the minimum skill level remains at RQF level 6, with corresponding salary thresholds, future use of the ICT route may be reserved for situations where the worker does not qualify for a Skilled Worker visa. This may be the case where the worker cannot meet the English language requirement for the Skilled Worker route, or the proposed remuneration package has a substantial allowances element.

The MAC recommended that the Home Office considers increasing both the collection and monitoring of data to check compliance with the existing rules on skill level, reported salaries and allowances. Sponsors can expect to see more sponsor compliance visits, including questions about ICT workers’ duties and responsibilities, the breakdown of their salary and allowances, and their accommodation arrangements.

Regarding the ISC recommendations, the MAC noted that the Trade and Cooperation Agreement between the EU and the UK states that, for the ICT route, the Immigration Skills Charge must be disapplied to EU nationals by 1 January 2023 at the latest. It is possible that an exemption will be extended to non-EU nationals as part of the Home Office’s consideration of costs as part of its sponsorship review.

Intra-Company Graduate Trainees

The Home Office is also obliged to offer provisions for ICGTs under GATS and other FTAs. Eligible applicants must be coming to the UK to take part in a structured graduate training programme leading to a senior or specialist role within the group of entities they are working for.

The MAC’s recommendations for ICGTs are:

• To retain the requirement for eligible applicants to have worked for a group entity abroad for at least 3 months
• To keep the minimum skills threshold at Regulated Qualifications Framework (RQF) Level 6 (bachelor degree equivalent)
• To align salary thresholds with those for new entrants to the labour market under the Skilled Worker route, i.e. to drop the minimum salary threshold from £23,000 to £20,480, and to require applicants to meet the higher of the minimum salary threshold or 70 per cent of the going rate for the occupation
• To continue to count and monitor allowances in the same way as recommended for ICT
• To continue to exempt graduate trainees from the ISC
• Not to impose an English language requirement

Analysis

If accepted, the reforms proposed by the MAC would reduce the amount some employers may need to pay to bring a graduate trainee to the UK. The exemption from the ISC and no English language requirement may differentiate this option from Skilled Worker, but this is likely to make a practical difference in only a handful of cases as the ICGT provisions are rarely used.

Sponsors using this route should also be aware of the likelihood that the graduate training programme, reported salary and allowances may be more heavily scrutinised in the future.

Personnel required to set up a UK branch or subsidiary

Currently, the Representative of an Overseas Business Route (RoBR) allows a single representative of an overseas business to enter the UK to set up a UK branch or wholly owned subsidiary. Once the UK business has been established, it can obtain a licence to sponsor staff to the UK on a Skilled Worker or ICT visa.
On this, the MAC has recommended that the current option for only one individual to travel should remain the same. Also, the MAC believes that the legal establishment of a business should not take more than one year to conduct in most cases. As such, they recommend that any individual subsidiary should be limited to a two-year period (allowing for a switch into other visa routes).

Additionally, the MAC has recommended a two-year trial of a ‘Team Subsidiary Route’, to enable initial data on its operation to be collected and analysed before proceeding further. During the trial, the overseas business would be assessed as a sponsor for up to five individuals. At least one of the team members would need to meet the criteria of the current RoBR, whilst other team members would need to meet the criteria of the Skilled Worker route. The proposal is for specific eligibility criteria to be produced by the Home Office and for these to be adjusted during the trial period as appropriate, with input from the MAC.

Analysis

The current two-stage process for RoBR and then obtaining a sponsor licence causes issues for businesses as many want to send more than one employee during the set-up phase. Assessing the overseas business to sponsor up to four additional workers initially seems like a sensible and welcome development.

The arrangements proposed by the MAC will give businesses two years to reach the point of being able to apply for an Intra-Company Routes licence, Skilled Worker and/or other sponsor licence to continue to retain their initial team and sponsor any other workers as appropriate.

Although the MAC confirms that switching into other routes should be allowed from the reformed RoBR and new Team Subsidiary routes, it is not clear whether time in them will count towards settlement. If it does not, this may act as a disincentive to transferees.

Secondees from overseas clients of UK export companies

Currently it is possible for personnel from a client of a UK export company to be seconded to the UK to oversee the requirements for goods and services that are being provided under contract by the UK company or one of its subsidiaries. The two parties to the contract must not be part of the same group.

Up until an Immigration Rule change on 6 October 2021, it was allowable for employees to exceptionally make multiple visits covering the duration of the contract.

The MAC noted that there is little data on use of the visitor provisions. On occasion, the Home Office has issued leave outside the Rules to secondees who fell outside the remit of the visitor Rules, as well as to some dependants who would not otherwise be able to accompany the secondee.

The MAC recommended for a secondment route to be included as part of the Global Business Mobility offering, initially requiring the following:

• A contract value of £50 million or more
• Operation of the overseas seconding business for at least 12 months
• Maximum visa length of 12 months, with a single renewal
• Eligibility for dependants
• Monitoring by the Home Office and immediate suspension being possible where abuse is detected

Analysis

The current visitor Rules are usually used where the overseas business has no presence in the UK, and therefore cannot use the ICT route. Although they are beneficial for managing effective delivery of contracts, it is likely that many businesses will not be aware of them. Bringing the within a visa route geared towards global business mobility may itself increase their use.

The MAC’s proposals are more restrictive than the current position in terms of introducing a minimum contract value, and also shift the focus of the secondments from being the client ensuring their requirements are met, to being “upskilled in the use of the product being produced” by the UK business. It may become important for businesses to provide feedback to the Home Office if the contract value has been set at too high a level, or if the scope of the route is too limited.

The capacity to bring dependants is a welcome development. A lack of provision in this area may have put off secondees being deployed in the past, particularly where they did not know an application outside the Rules was possible or considered the outcome of this to be too unpredictable.

The 24-month maximum length of the visa may not be long enough for key client secondees engaged on a long infrastructure or engineering contract for example, however it may be possible to refresh this period by obtaining fresh entry clearance.

Contractual service suppliers and independent contractors under international agreements

The Home Office has confirmed in separate communications with stakeholders that the provisions for contractual service suppliers and independent contractors, which are currently part of the International Agreement route, will be included in the Global Business Mobility offering.

Analysis

These arrangements are already closely aligned to the UK’s obligations under international agreements and were not within the scope of the MAC’s review. The substantive reforms in this area are likely to be modest.

For further information, see our article, Using the International Agreement visa route to sponsor contractual service suppliers.

Short-term assignments

Some stakeholders the MAC engaged with noted the current lack of an agile, low-cost and time-limited provision in the Immigration Rules for individuals to undertake specialist technical work on a short-term basis. This was felt to have become a more significant problem following the end of freedom of movement between the UK and the EEA/Switzerland.

The MAC recommended that the Home Office should consider:

• Amendments to the visitor Rules to enable time-limited essential work travel to the UK
• Implementing a short-term ICT route in addition to visitor Rule changes

Analysis

Detailed consideration of this aspect was outside the remit of the MAC’s commission, so it may be that the Home Office issues a separate commission or formulates further policies in response to direct stakeholder engagement.

There have been instances of extreme worker shortages in some sectors during 2021, for which the Home Office has considered short-term work authorisation to be most appropriate. To avoid similar market shocks in the future, it would be beneficial for detailed analysis to be carried out to identify and address these areas from an immigration policy perspective. A formal, structured policy approach involving the MAC would seem most sensible here.

What comes next?

The Home Office will respond to the MAC report. More details of the Global Business Mobility route may be published at the same time, or at a later date ahead of the route’s implementation. Formal Immigration Rules will be published in the early part of next year.

There is still time to influence policy in this area, so if you have any queries or concerns about the proposals as currently understood, please get in touch with a member of our Immigration Team.

Related Item(s): Immigration & Global Mobility

Author(s)/Speaker(s): Andrew Osborne, Supinder Singh Sian, Kathryn Denyer, Li Xiang, Margaret Smith,

The Home Office has recently made available important information for those who have already been granted immigration permission under the EU Settlement Scheme (EUSS), as well those who were resident in the UK by 31 December 2021 and are yet to make a EUSS application, or who have one in process.

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The information focuses on action points to facilitate smooth travel and to encourage the effective exercise of individuals’ rights under the Withdrawal Agreement.

The information comes from the following two sources:

• An email sent by the Home Office directly to EUSS participants on 5 October 2021; and A letter sent by the Home Office to stakeholders on 5 October 2021.

• Further details and their implications are discussed below.

Email from the Home Office to EU Settlement Scheme participants

The Home Office email sent on 5 October 2021 to people both with settled and pre-settled status covers a range of areas as set out below.

Accessing and updating a UK Visa and Immigration (UKVI) account

The Home Office reminds participants to update their personal details on their UKVI online account. This can be done on the Update your UK Visas and Immigration account details page of the GOV.UK website, or through the ‘update details’ function in the View and Prove service.

Travelling to or from the UK

When travelling to or from the UK, the Home Office advises that individuals should travel on a document that has been registered on their UKVI account. Individuals should add new or additional travel documents to their UKVI account through the ‘Update your UK Visas and Immigration account details’ or the ‘update details’ function.

If a participant has not received confirmation that the new document has been successfully added to their account before their travel, they should ideally also carry the document that they applied with to avoid unnecessary delays at the border.

Since 1 October 2021, most EEA and Swiss citizens (‘EEA citizens’) can no longer use their national ID card to enter the UK. They must use a valid passport instead, unless an exception applies.

EEA citizens with status under the EUSS (and certain other individuals with protected rights under the Citizens’ Rights Agreements) are able to use their national ID card for travel until at least 31 December 2025. If intending to use a national ID card, the Home Office recommends that EUSS participants should ensure this is added to their UKVI account before travel.

Switching from pre-settled status to settled status

Individuals who hold pre-settled status can apply for settled status as soon as they are eligible, which is normally after five years continuous residence in the UK, the Channel Islands, or the Isle of Man. The five-year period is counted from the first day of arrival in the UK. At the latest, they should ensure the further application is made before their pre-settled status is due to expire. Further information can be found on GOV.UK here.

To qualify for settled status, normally no more than six months should be spent outside the UK in any 12-month period over the five years. The Home Office provides further information on this requirement and exceptions to it here.

Applications for children

Children must apply to the EUSS if they were resident in the UK by 31 December 2021, are not British or Irish citizens and do not have another type of UK immigration status. Parents can apply on their behalf, and can also link the child’s application to theirs. Further guidance can be found here.

If an EUSS participant or their partner has given birth in the UK after 11 pm on 31 December 2021, and neither individual had settled status, another form of indefinite leave to remain, or British citizenship at the time of birth, and the child is not an Irish citizen, an EUSS application will need to be made on the child’s behalf within three months of the birth. This can be a very short timeframe in practice once the issuing of a birth certificate and travel document are taken into account.

A late application can be made if the deadline is not met, provided there are reasonable grounds for this. The Home Office has to-date taken a liberal approach to this requirement, however there are also hostile environment risks such as being charged for NHS services if an application is not made on time.

If the participant or their partner held settled status, another form of indefinite leave to remain, or British citizenship at the date of birth, a child born to them in the UK will be British by birth and no EUSS application will be needed.

The legal position and process for a child born abroad should be checked, and any required actions completed before the child travels to the UK.

Family members who have not yet applied

The Home Office confirms that family members who became resident in the UK by 31 December 2021 should apply to the EUSS urgently if they are not a British or Irish citizen, and do not hold another form of UK immigration status. This includes family members who are not EEA citizens and those who hold an EEA Biometric Residence Card, even if the card has an expiry date after 30 June 2021.

This is because the deadline for making the application was 30 June 2021, and UK residence documents issued under EU law stopped being valid from this date.

A late application can be made if there are reasonable grounds. The Home Office’s approach in its guidance to case workers is, for the time-being, to give applicants the benefit of the doubt when considering the information provided with an application on the reasons why the application deadline was missed.

Joining family members

There is no deadline for family members who wish to join a person with settled or pre-settled status under EUSS. They can join the scheme participant at any point, provided they make an EUSS application within 90 days of their arrival in the UK.

Further general information on joining family members can be found on GOV.UK here.

Caution should however be exercised by this group when planning their applications and travel plans for entering the UK.

For example, recent Immigration Rule changes allow a joining family member to make an application under the EUSS if they are in the UK as a visitor. However, the Home Office has recently confirmed to our firm that a joining family member may be refused entry as a visitor if they do not meet the visitor Rules in full at the time they enter (including having an intention to leave at the end of the visit). No concession outside the Rules exists for joining family members who know they want to apply under the EUSS before they seek to enter the UK, so the appropriate course of action in the majority of cases will be to obtain an EUSS family permit before travelling.

Pending applications

A person who makes a valid application to the EUSS on or after 1 July 2021 will have their rights recognised while their application is pending, including the right to healthcare and other services, as well as the right to work, study and rent property (in England).

Home Office correspondence with stakeholders

The Home Office sent a letter to stakeholders on 5 October 2021 to confirm advice for individuals who wish to travel to or from the UK with a pending EUSS application that has been made on the basis that they were resident in the UK by 31 December 2020. The letter does not cover joining family members who were not themselves resident in the UK by the end of 2020.

Applicants who applied to the EUSS by 30 June 2021

The letter advises applicants who applied by 30 June 2021 to travel outside the UK/to the UK once they have a Certificate of Application (CoA) confirming they have made a valid application under the scheme. Where sufficient other evidence of the date of application is provided to Border Force, this will be accepted, however this approach carries a risk of being delayed at the border when re-entering the UK.

The Home Office also mentions that these individuals’ rights are protected under secondary legislation while their valid EUSS application and any related appeal is pending.

In direct correspondence to our firm, the Home Office has provided helpful confirmation of the position for an EUSS applicant who was resident in the UK by 31 December 2020, made an application abroad under the EUSS by 30 June 2021 and then entered the UK while it was pending. Such a person will not be required to depart and re-enter once the application has been granted, despite the fact their application will have been for permission to enter (rather than stay) in the UK.

Applicants who applied to the EUSS after 30 June 2021

These applicants are told not to travel outside the UK/to the UK until they have a CoA, and are warned that on re-entry they may also be asked to provide evidence they were resident in the UK by 31 December 2020. They are also told that they will not be able to prove their right to study in the UK unless they have a CoA.

The Home Office confirms the rights of these applicants are protected while their valid EUSS application and any related appeal is pending. This recognition derives from a policy statement released by the Home Office on 6 August 2021, and is not currently supported by any legislation.

If you have any queries about the topics covered in this article, please contact a member of our Immigration Team.

 

Related Item(s): Immigration, Immigration & Global Mobility, BREXIT

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

The latest Statement of Changes in Immigration Rules rebrands the T5 International Agreement route as the International Agreement route from 9 am on 11 October 2021. In this article, we look at how the route can be used to bring contractual service suppliers to the UK, and which business scenarios may benefit from it.

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What is the International Agreement route?

The International Agreement route is a sponsored route, broadly for individuals whose work is included under international law or an international agreement the UK is a signatory to.

There are specific provisions for individuals who need to provide services in the UK to fulfil a contract between a UK business (the sponsor) and an overseas business with no UK presence. These people are referred to as ‘contractual service suppliers’. There are also provisions for independent professionals, but these are rarely used in practice.

What are the main requirements for sponsoring contractual service suppliers?

In all cases, the service supplier’s business must be established in the country or territory that is a signatory to the trade agreement they are supplying services under, and the sponsor business must be the end consumer of the services.

The most commonly relied on agreements are:

• The World Trade Organisation General Agreement on Trade in Services (GATS)
• The UK-European Union Trade and Cooperation Agreement
• The UK-Switzerland Temporary Agreement on Services Mobility

It is important to correctly identify which agreement being relied on, because some of the criteria are different for each agreement.

The contractual service supplier must normally be a national of the country or territory in which the supplying business is established. However, if the UK-Switzerland agreement applies, or GATS where the supplying business is established in Armenia, Australia, Canada, New Zealand or Switzerland, they may be a permanent resident. The person providing the services must also have a degree or technical qualification (some industry-specific exemptions may be applicable), have been employed by the contractual service supplier for at least 12 months and have at least three years’ relevant professional experience.

There is no English language requirement to be met for this route.

The UK-based company in receipt of the eligible services must hold a sponsor licence with the ‘International Agreement’ route activated. If they do not hold a sponsor licence or do not have the route activated, they will need to make an application to the Home Office. The sponsor must also seek prior approval from the Home Office before assigning certificates of sponsorship under this route by sending a copy of the contract to the Home Office for approval and certifying that the contract was awarded through a ‘bona fide’ bid process.

How long can a contractual service supplier stay?

The time a person can spend in the UK as a contractual service supplier under the route is as follows:

Agreement	Time Allowed (shortest time will apply)
GATS	6 months in any 12-month period, or length of certificate of sponsorship plus 14 days before and after
UK-EU	12 months at a time, or length of certificate of sponsorship plus 14 days before and after
UK-Switzerland	12 months in any 24-month period, or length of certificate of sponsorship plus 14 days before and after

 

What scenarios and activities come within the contractual service provider provisions?

The route can be particularly useful for periodic contracts to maintain specialist equipment in the UK, or other recurring contracts where the proposed activities in the UK are not permitted under the immigration rules for visitors

UK businesses able to benefit from the route include the automotive manufacturing industry, other manufacturing businesses using productions lines, as well as businesses in the oil and gas and energy generation sectors.

The relevant international agreements specify which activities they cover. The full activities covered by the GATS, UK-EU and/or UK-Switzerland agreements are as follows:

 

Case Study:

Following a ‘tender’ process, a UK-based manufacturing business entered into a contract with an Italian company for the provision of ‘integrated engineering services’ in the UK. The Italian company have no commercial presence in the UK and did not manufacture, supply or lease the machinery they will be installing/servicing and as such cannot not send their employees to the UK as visitors. Before 31 December 2021, they utilised ‘freedom of movement’ to provide services under contract in the UK, which is no longer applicable. The UK company holds a sponsor licence covering the International Agreement route and have received approval from the Home Office to utilise the International Agreement route. The UK company may now sponsor the eligible Italian national employees so they may apply for entry clearance to enter the UK and provide the services under contract.

We are running a webinar on this route and alternative options for contractual service suppliers on 21 October 2021. You can sign up for this event here. For specific queries, please contact a member of our Immigration Team.

Related Item(s): Immigration & Global Mobility, Sponsoring Migrant Workers

Author(s)/Speaker(s): Supinder Singh Sian, Andrew Osborne, Parvin Iman,

As resourcing becomes more challenging, we explore the employment law and immigration considerations arising from the current recruitment crisis.

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As the world of work begins to reopen, many businesses are looking forward to putting the tumultuous last year behind them with a focus on brighter horizons. The furlough scheme has come to an end but, although this was expected to result in another wave of redundancies, in fact there has been a fall in the proposed level of job cuts. Instead, we are hearing of many businesses planning to expand and recruit. According to the Office for National Statistics, job vacancies are at a record high. This has resulted in a highly competitive market in many industries.

To add to this, the repercussions of Brexit are further impacting the labour market, and not just in relation to the well-reported shortage of logistics drivers. According to the CIPD’s Resourcing and Talent Planning Survey 2021, a quarter of respondents said that it was more difficult to recruit due to Brexit.

The combined result is the worst staffing and skills shortage the UK has seen in recent years. The CBI has recently reported that labour shortages are a concern to over three quarters of businesses, and they are expecting shortages to last years. We are even hearing anecdotal accounts from clients of recruitment firms turning away work.

The resulting situation has left businesses looking at alternative resourcing solutions. This article focuses on the employment law and immigration considerations we are seeing as businesses navigate this crisis.

Where to recruit?

The UK is not alone in facing a recruitment crisis and staff shortages are a global issue. However, when facing hiring difficulties, we are increasingly aware of employers looking further afield to resource their roles.

Working remotely from outside the UK

Following the pandemic, many individuals have relocated or moved back to the country their family is based (or are hoping to make such a move). We are increasingly asked to review contractual arrangements involving employees working temporarily or permanently from overseas. There can be a number of legal headaches including tax, social security, mandatory employment protection and data privacy considerations (see our InBrief guide to working remotely abroad) but we are seeing that employers are nonetheless amenable to these arrangements, within certain parameters, if they enable the business to recruit or retain important skills.

Some countries have launched “digital nomad” visas to attract people who have no set home base to work remotely from that country without needing to pay local tax. These are often subject to conditions (e.g. minimum income requirements) but can be an attractive prospect to individuals, especially freelancers in certain marketing or IT functions.

Bringing recruits into the UK

There are a number of ways to bring overseas workers into the UK, including sponsorship under a skilled worked visa or an intra-company transfer visa. Although the immigration system remains strict, and now encompasses European nationals, in some respects the new framework has made sponsoring migrant workers easier. For example, the minimum salary threshold has decreased to £25,600 (or the going rate for the particular job), it is quicker to request an electronic certificate of work authorisation than it once was, and “new entrants” to the job market (including younger workers) face less stringent eligibility requirements.

A business wishing to bring someone into the UK to work for them will, however, need to apply for a sponsor licence. Increasingly, businesses are having to factor in the financial and administrative costs of making that application into their ordinary operations, because the process can take a couple of months.

UK-wide recruitment

The pandemic has changed how we work, with 36% of UK workers working at least partially at home during 2020. Most organisations seem to be moving to a hybrid form of both home and office-based working, but we are seeing more instances of businesses looking further afield and advertising for fully-remote roles UK-wide, with some moving away from well-established geography-based scales and basing pay on contribution rather than location. The Office of National Statistics has found that online job adverts for “homeworking” have increased at a faster rate than total adverts. For more information on some of the employment law implications, see our FAQs for employers on working from home.

Who to recruit?

The ongoing recruitment crisis has meant businesses need to urgently broaden their recruitment pool. There are both short and long term solutions to this problem.

Diversity

We have also seen that employees increasingly want to work for diverse businesses and this is perhaps another reason to broaden the pool of “traditional” candidates. We are increasingly being asked to advise upon the use of tools such as:

• Contextual recruitment systems, which take into account an individual’s background when assessing achievements to help employers identify candidates with the greatest potential. Usage of these systems can significantly broaden the recruitment pool.

• Positive action initiatives, which involve taking targeted steps to address underrepresentation or disadvantage experienced by people with protected characteristics. These initiatives can be very effective in increasing the diversity of your business, although the legal framework remains relatively restricted.

If they have not done so already, employers may want to consider creating diversity networks or communities, so existing employees feel they have a voice and can contribute to an inclusive culture. Any such group could also be consulted with on how to improve an employer’s recruitment and retention processes. In addition, businesses should consider refreshing their training to recruiting managers on unconscious bias.

Younger recruits

Investing in graduates and young recruits has been a focus of many businesses for years, allowing businesses to organically grow their workforce on a long-term basis. Whilst school-leavers or university graduates may not have the immediate skills or experience an employer ideally desires when recruiting for a specific role, this group of candidates do have the potential to be trained into the job.

Making use of apprenticeships (discussed below) can be a pragmatic way to entice younger workers. Employers should also consider making use of the government’s Kickstart Scheme which provides funding to employers to create jobs for 16 to 24 year olds on Universal Credit who are at risk of long term unemployment. This funding covers 100% of the national minimum wage for 25 hours per week for a total of 6 months, plus associated employer’s National Insurance contributions and minimum automatic enrolment pension contributions.

In recent months we have noticed an increase in recruiting under-18s in hospitality and retail. This involves extra considerations such as additional working time constraints. In particular, 16 and 17 year olds must not work more than 8 hours a day or 40 hours a week and there are different rest break and night-working requirements.

Older recruits

With an aging population it is unsurprising that the proportion of those aged 65 and over who work has almost doubled since records began. In the US, nearly twice the proportion of over 70’s work, compared to the UK, suggesting this is an untapped market.

Businesses are increasingly taking steps to retain and attract older generations of workers by providing increased support, for example in the form of menopause policies. As referred to above, it is also important to train recruiting managers on unconscious bias to ensure any outdated and stereotypical views of older workers are overcome.

Perhaps a future area of focus for employers is grandparental leave. Grandparents currently have no legal right to paid (or unpaid) leave to care for their grandchildren. Government plans to allow shared parental leave to be taken by grandparents were announced in 2016 but have since been put on the back burner. We are seeing an increase in employers enhancing family leave policies in more creative ways in recent years, and a focus on time off for grandparents could be a very real benefit for older workers.

Many older workers are looking to build their pension pot and so employers that offer generous matched pension contribution benefits could find it easier to attract this generation.

Returners

Longer term solutions for recruitment could also focus on recruiting employees who have taken time out to raise a family, care for a dependant, for medical reasons or to travel or study.

Whilst a prolonged break from work was once seen as an obstacle, employers are now beginning to value those looking to return. This has been a growing focus for the Government Equalities Office and best practice guidance for employers considering returner programmes was published in 2018. There are a growing number of employers offering “returnships” – a short term, professional internship to re-introduce recruits back into full time employment in senior roles. This recruitment strategy often works best alongside other measures, such as mentor schemes and coaching, as well as a focus on flexibility and potentially also broader measures such as partnering with after-school providers.

Apprenticeships

Apprentices are often cited as a way of futureproofing the workforce against skills gaps. All employers with a wage bill of more than £3 million will already pay an annual apprenticeship levy of 0.5% and can use their levy funds to pay for training and assessing apprentices. The government applies a 10% top-up and offers additional incentives for recruiting certain categories of apprentice.

Apprenticeships may not be appropriate if your business is struggling to recruit for specific specialist or senior roles, but they can be a longer-term solution for ongoing skills gaps. They also make use of levy funds that, if left unspent, will become unavailable to you after two years. You can either recruit new apprentices or have existing employees or consultants begin an apprenticeship. There is a wide range of apprenticeships available, with the government having significantly invested in the development of over 500 standards. Apprentices can be of any age, making them a potentially attractive option for existing employees who are interested in retraining.

If your business cannot commit to the minimum 12 month duration of an apprenticeship, you may be interested in the new Flexi Job Apprenticeship Scheme, which will allow apprenticeship agencies to supply apprentices to work with multiple host employers and for short periods of time if necessary (see here for our earlier article on the scheme).

It is crucial to put the correct contractual arrangements in place when recruiting an apprentice so that you can access funding and avoid falling into the old common law regime for apprentices (for more detail see our InBrief guide to apprenticeships and, for the latest changes to the funding rules, see here).

Resourcing through intermediaries

We are seeing an increase in requests from individuals that they be engaged via personal services companies, especially in the logistics sector. Such arrangements may help attract labour and provide tax efficiency from the individual’s perspective, but businesses should be careful this is not a form of tax avoidance and will need to consider the recent IR35 changes. To avoid IR35 implications, many businesses are trying to resist engaging individuals via personal services companies and are increasingly pushing to remove personal services companies from their supply chain altogether, for example they are asking that individuals are instead employed by umbrella companies or other staffing intermediaries. The final arrangements are increasingly influenced by the strength of each party’s negotiation position.

To engage individuals abroad, businesses are increasingly using an “employer of record” or professional employer organisation (PEO). These are entities which have responsibility for employing and paying employees, dealing with all tax, social security, benefits, visa applications and other such matters. The ramifications of this type of arrangement are discussed here.

Attracting candidates (and retaining your existing employees)

The ongoing labour shortage has forced many businesses to take a step back and re-evaluate their overall employment “package” and what stands them apart from competitors.

Recruitment process

The government has recently confirmed that it will not be taking forward earlier proposals to require employers to specify in job advertisements whether flexible working would be considered. In practice, however, employers understand that the employee’s experience starts at the point an advert is placed, and that offering flexibility may be increasingly key to recruitment. In our recent survey on post-Covid employment policies, around half of our survey respondents said that they are already changing job adverts to explain or promote their approach to flexible, hybrid or remote working.

As the market becomes more competitive, employers need to be careful not to lose employees before they have started work. When an offer is accepted, extra effort should be taken to welcome the individual even before they have started; a strong sense of belonging will mitigate any counter offers a prospective employee will receive. Employers should also take care not to breach any contractual terms that an employee may have with their existing employer.

Salary and benefits

It is being widely reported that companies are planning standard pay rises across the board to both incentivise their current workforce as well as lure new recruits. We are also seeing clients adopting more focused performance-based bonus schemes or rewarding employees on a team success basis.

Employees are, however, increasingly prioritising other factors such as company values and flexibility over salary. Businesses that have not already done so should consider reviewing and potentially expanding their benefits package, for example to include additional health insurance, enhanced pay for family leave or higher pension contributions. We are beginning to see an increase in flexible benefit schemes, giving greater control and choice. Where possible, employers should take advantage of opportunities to provide benefits in a tax efficient way – see our article on how to structure employee remuneration packages after Covid-19 for more information on the options.

It is well reported that employees’ mental health has suffered throughout the pandemic and benefits focussed on health and wellbeing can help increase an employer’s attractiveness. These might include wellness programmes, employee assistance programs, gym memberships, subsidised or free healthy food and/or extra days off to support mental health.

Training and development

Investing in your existing workforce has been a common response to recruitment difficulties, and over half of businesses have turned to upskilling their existing employees. Investing in training and development could incorporate internships, returnships, apprenticeships as well as training programmes for existing employees to boost their skill set or upskill them into different roles. In addition, it could enable businesses to recruit individuals who are a good culture fit but lack the necessary skills. Businesses should also be open to allowing flexible working patterns to allow employees to undertake studies outside of work.

Environmental, social and governance (ESG) and value-driven policies

We have seen a rise in employers adopting value-drive employment policies in the wake of the pandemic, including policies on menopause, miscarriage, transitioning at work and policy initiatives such gender-neutralising employment contracts and handbooks (to read more see here).

Sustainability is an emerging area of focus for many employers who are looking at reducing waste, energy efficiency and implementing greener supply chains. There are some very early signs of employment practices changing, for example as companies explore more cycling to work and less business travel by plane, but in future we can expect employment law and the world of work to evolve to require organisations to take greater account of the climate emergency (as discussed in our article on the climate emergency, work and employment law).

The law has helped drive companies forward in relation to ESG matters, requiring companies to examine their approach to, for example, modern slavery and gender pay gaps. However, we are seeing employers going further than they are required to. For example, despite the government’s delay in legislation, we are seeing increasing numbers of employers calculating their ethnicity pay gaps (for the latest position, see our recent article on the government’s delay).

A genuine engagement from employers with these issues can help form and drive the culture of a business, in turn attracting candidates and helping retain employees.

Flexibility and hybrid working

As offices re-open, many employers are re-thinking how they require their employees to work. There is a real focus on agility and flexibility as many businesses are exploring new “hybrid” ways of working (for more detail on the legal issues, see our InBrief guide to hybrid working arrangements). Introducing hybrid working is difficult to navigate in practice, however, and we are receiving an increasing number of queries about employees who are reluctant return to the office at all. Keeping employee morale high whilst implementing new ways of working is a priority for many employers at the moment.

Protecting your business

Employees are increasingly isolated from each other as a result of the pandemic and it is therefore much harder for managers to gauge employee satisfaction. Setting up a works council or an employee forum is an increasingly common approach to improving employee engagement and thereby helping to stabilise a workforce (see should employers set up a standing body for collective consultation?). Other options include using tools such as employee surveys to check in with employees.

Clear policies on social media use, conduct and data protection can also help ensure that wrongdoing such as stealing confidential information or sharing confidential matters on public forums is dealt with promptly and robustly.

With job vacancies at an all time high, it is perhaps inevitable that some employees will leave, even if employers are implementing the steps and initiatives set out above to incentivise and retain their employees. If employees do leave, you need to ensure your business has taken steps to limit any damage. This starts at the recruitment stage and should include having adequate notice periods and, where appropriate, post-termination restrictions in place. Clear processes for leavers, particularly for the purposes of regulating employees’ access to business-critical information, will also help ensure businesses are protected if an employee is leaving to go to a competitor. For a summary of the steps you can take to protect your business as recruitment and retention become more challenging, see our article on protecting your business where employees are in short supply.

Related Item(s): Employment, Remote working overseas, Resourcing for 2021 and beyond

Author(s)/Speaker(s): Charlotte Morgan,