What is the Entry and Exit System (EES)?

The EES will register all visa-free and visa-required travellers entering the Schengen area for short stays. Registration will not apply to citizens of Schengen member countries, or to the two EU countries (Cyprus and Ireland) that are not parties to the Schengen agreement. It will be a requirement for British citizens travelling on a British passport unless an exemption applies.

If you need to register your details with the EES, no action will be needed before your trip; registration happens at the external border of any of the 29 European countries that are members of the Schengen area.

The EES will collect your facial image, fingerprints, travel document data, and record the time and place of entry and exit. It will also log any previous refusals of entry, including details of the refusal. This will replace manual ‘wet stamping’ of passports.

Using advanced technology, the EES will create a detailed travel history, calculate the duration of your authorised stay, generate alerts when your stay is due to expire and flag if you overstay. It will improve border management, detect document and identity fraud, and monitor unauthorised short stays. The goal of the system is to make external borders stronger, smarter and more secure.

When is EES being rolled out?

If the EES applies to you, then starting from 10 November 2024, you will need to register your biometric information at border crossing points when entering for the first time since the EES was implemented.

You will also need to re-register every three years.

What are the main impacts of EES?

For travellers:

There is a 90/180 day rule for British and other non-EU visitors to the Schengen area. This limits presence in the Schengen zone to a maximum of 90 days in any 180-day period. The EES will enable stricter enforcement of this rule by digitally tracking entry and exit dates. Travellers will need to take care to comply with this rule to avoid penalties or entry refusals, such as not being permitted to re-enter the country.

Click here to use the short-stay visa calculator, which can assist with monitoring presence in the Schengen area and ensuring the 90/180 day rule is not breached.

The EES will streamline border checks, but you should be prepared for potential delays, especially during the initial implementation phase. It’s a good idea to bring food, water, plus any necessary medication, as queues might be longer than usual. It will add two to three minutes of processing time per passenger, up from about 45 seconds at present.

For airline passengers, at larger hubs, you’ll be directed to kiosks, much like those at US airports, to answer multiple-choice questions, have your fingerprints captured, and a photo taken. After that, you’ll proceed to the border as usual. At smaller airports, your picture and fingerprints will be taken at the border-control booth, and the questions will be asked by the official.

For businesses:

Businesses should consider:

• Reminding staff of the 90/180 day rule, noting that following the introduction of EES, this will be routinely enforced;

• Directly monitoring the presence of staff as visitors to the Schengen area, to minimise the risk that a staff member may not be eligible to travel to the area on business due to excessive personal and business visits; and

• Ensuring that the purpose and scope of business-related travel to the Schengen area is actively monitored, and that appropriate work permission is secured in advance of travel, if required.

For further information, see our earlier article here.

For transport terminals:

The European Commission, EU member states, local authorities, and the travel industry are preparing ports for the EES. In the UK, this includes funding of £3.5 million each for Eurostar, Eurotunnel, and the Port of Dover for registration kiosks and infrastructure.

Eurostar will have 50 kiosks across three stations, with the aim of making EES registration quick and easy. Eurotunnel will have over 100 kiosks. The Port of Dover will have 24 kiosks for coach passengers, as well as using agents and tablets for car passengers to streamline the process.

What’s the latest on the European Travel Information and Authorisation System (ETIAS)?

The new European Travel Information and Authorisation System (ETIAS) is a pre-travel authorisation system.

The EES is being introduced ahead of the launch of the European Travel Information and Authorization System (ETIAS), which is a pre-travel authorisation system for citizens of certain countries (including the UK) who aren’t required to get a visa before visiting the Schengen area. It’s similar to the American ESTA.

ETIAS is currently due to launch in the first half of 2025, although this timeline could slip as it has been pushed back before.

Once ETIAS becomes a requirement, it will apply to British visitors unless a specific exemption applies.

If you are required to get an ETIAS authorisation, you’ll need to apply online or via a mobile app, and your information will be checked against EU security systems. You’ll need to provide passport details and answer a series of questions, for example about criminal records and medical conditions.

Most applications should be approved within minutes, but it could take up to 30 days. An ETIAS authorisation will be valid for three years or until your passport expires, costing €7 (£6) for those aged 18 to 70, and free for others.

ETIAS will allow unlimited visits within its validity period but is linked to your passport, so if your passport expires, you’ll need a new ETIAS.

Frequently asked questions about ETIAS are available here.

Need some more information?

We have created a set of template communications and guides to help businesses explain the rollout of the EES to people teams and staff. If you would like to learn more, please get in touch with a member of our Immigration team.

The UK Government has gradually been rolling-out ETAs since 15 November 2023. We now have confirmation the scheme will be expanded in two further stages, starting on 8 January 2025 and 2 April 2025. 

Once the scheme is fully implemented in April 2025, ETAs will become a pre-entry requirement for everyone who doesn’t require a visa to enter the UK and who doesn’t have any existing UK immigration permission (or exemption from immigration control). ETAs cost £10 and last for two years or until your passport expires, whichever happens first. See our earlier article to find out more about the basics of ETAs.

What are the main impacts of this development?

For businesses:

If you finance the expenses of business visitors to your organisation in the UK, you may need to adjust your budget to reflect the £10 cost of ETAs.

For travellers:

If you are a non-visa national currently able to visit the UK without any pre-entry formalities, you should:

• Understand when the ETA requirement will start to apply to you;
• Factor the additional process and cost into your UK travel plans;
• When required, make sure that you get (or, during the implementation period, at least apply for) an ETA in good time before travelling to the UK;
• Be aware that larger-scale rollout of the new system may initially cause some queuing delays when visiting the UK, and consider packing additional food, water and medications;
• Be aware that you may be refused an ETA in certain circumstances, for example if:
  • You have a current UK deportation or exclusion order:
  • You have a significant criminal history;
  • You have previously overstayed in the UK; or
  • You have outstanding debts to the UK; and
• Be aware that if you are not eligible for an ETA or have one refused, you may need to apply for a visa to visit the UK.

Who currently needs an ETA to visit the UK?

The ETA system already applies to citizens of:

• Bahrain; 
• Kuwait;
• Oman; 
• Qatar; 
• Saudi Arabia; and 
• United Arab Emirates.

Why can’t citizens of Jordan get an ETA anymore?

As of 10 September 2024, Jordanian citizens were added to the UK’s visa national list. This means they stopped being eligible for an ETA. 

If you are a Jordanian citizen, you must now apply for a visa to visit the UK instead. However, if you were granted an ETA and have a confirmed travel booking before 15:00 BST on 10 September 2024, you can still use this for travel due to arrive in the UK by 15:00 BST on 8 October 2024.

What other countries are being added to the ETA system, and when?

From 8 January 2025, the ETA system will become a pre-entry requirement for citizens of the below (non-European) countries/territories, with ETA applications becoming available from 27 November 2024: 

.tri-col {
column-count: 3;
}
@media only screen and (max-width:767px){
.tri-col {
column-count: 2;
}
}

• Antigua and Barbuda
• Argentina
• Australia
• Barbados
• Belize
• Botswana
• Seven
• Eight
• Brazil
• Brunei
• Canada
• Chile
• Columbia
• Costa Rica
• Grenada
• Guatemala
• Guyana
• Hong Kong Special Administrative Region (including British National (Overseas))
• Israel
• Japan
• Kiribati
• Macao Special Administrative Region
• Malaysia
• Maldives
• Marshall Islands
• Mauritius
• Mexico
• Federated States of Micronesia
• Nauru
• New Zealand
• Nicaragua
• Palau
• Panama
• Papua New Guinea
• Paraguay
• Peru
• Samoa
• Seychelles
• Singapore
• Solomon Islands
• South Korea
• St Kitts and Nevis
• St Lucia
• St Vincent and the Grenadines
• Taiwan (if you have a passport issued by Taiwan that includes in it the number of the identification card issued by the competent authority in Taiwan)
• Tonga
• Trinidad and Tobago
• Tuvalu
• United States of America
• Uruguay

From 5 March 2025, ETA applications will be available for all other non-visa nationals, with an ETA becoming a pre-entry requirement from 2 April 2025. The affected (European) countries/territories in the final stage are: 

.tri-col {
column-count: 3;
}
@media only screen and (max-width:767px){
.tri-col {
column-count: 2;
}
}

• Andorra
• Austria
• Belgium
• Croatia
• Cyprus
• Czechia
• Denmark
• Estonia
• Finland
• France
• Germany
• Greece
• Hungary
• Iceland
• Italy
• Latvia
• Liechtenstein
• Lithuania
• Luxembourg
• Malta
• Monaco
• Netherlands
• Norway
• Poland
• Portugal
• Romania
• San Marino
• Slovakia
• Slovenia
• Spain
• Sweden
• Switzerland
• Vatican City

When should I apply, and what happens if I forget?

Once the ETA requirement applies to your nationality, current government guidance suggests you should apply for your ETA at least 21 days before you plan to travel to the UK.

During an initial ‘implementation period’, it will be possible to travel to the UK with a pending ETA application, even if this has not yet been decided. Once this has ended, it will be necessary to have an approved ETA before travelling.

Need some more help?

We’ll be discussing ETAs as part of our upcoming webinar on 25 September 2024, What’s happening in immigration law – A Labour government special. Or if you have a specific question about how ETAs may affect your business, you can get in touch with a member of our Immigration team.

On 28 August 2024 the Home Office put a notification on its Sponsor Management System for Skilled Worker sponsors, confirming that when the Immigration Rules were updated in April 2024, the going rates for some occupations were stated to be higher than intended. 

The incorrect going rates will be amended in the Autumn update to the Immigration Rules. In the meantime, sponsors may rely on the figures stated in the following guidance documents (as updated on 10 July 2024), as these are the ones Home Office caseworkers will use: 

• Skilled Worker visa: going rates for eligible occupation code
  
• Skilled Worker visa: jobs that qualify for a PhD salary discount
• Skilled Worker visa: immigration salary list
• Skilled Worker visa: eligible salary if you’re under 26, studying, training or in a postdoctoral role

Although the Sponsor Management System notification does not cover sponsors under the Global Business Mobility routes and Scale-up routes, we have received confirmation from the Home Office that the following guidance documents for these routes may also be relied on:

• Global Business Mobility: going rates for eligible occupations
• Scale-up: going rates for eligible occupations

If you have any queries about the going rate requirements for sponsoring workers, please contact a member of our immigration team.

By the end of June, the new CIES had already received over 3,700 enquiries and 339 applications, with 88 of those applications receiving approval-in-principle and 3 applications receiving formal approval. 

This article provides a summary of the new CIES and highlight what it means for employers. 

What is “CIES”? 

The CIES is an investment-migration programme and was first introduced as a stimulus measure in 2003 when Hong Kong’s economy was in a recession but it was suspended in January 2015.   

As part of the 2023-2024 Budget, the Government announced a series of measures, including a revamped CIES, to revitalise Hong Kong’s economy. 

Under the new CIES, high-net-worth individuals can obtain residency together with their dependants, including spouses and unmarried children under 18, by making a minimum investment of HK$30 million in permissible investment assets. 

Overview of the new CIES 

The new CIES accepts applications from eligible persons aged 18 or above, including foreign nationals, Chinese nationals with permanent resident status in a foreign country, residents of Macau and Chinese residents of Taiwan.

Applicants must demonstrate that they have net assets of at least HK$30 million (or equivalent in foreign currencies) to which they are the absolute beneficiaries throughout the 2 years preceding the application. 

Applicants must then invest at least HK$30 million in permissible investment assets. Of the HK$30 million minimum investment threshold, at least HK$27 million must be invested in permissible financial assets and non-residential real estate, and at least HK$3 million must be placed into a dedicated CIES Investment Portfolio.
 
Successful applicants and their dependants who have maintained continuous ordinary residence in Hong Kong of at least 7 years and meet other requirements may apply to become Hong Kong permanent residents. Applicants who are unable to fulfil the continuous ordinary residence requirement may still be eligible to apply for unconditional stay in Hong Kong after 7 years.  After successfully becoming a Hong Kong permanent resident or obtaining an unconditional stay, the applicant will be free to dispose of the Permissible investment assets under the new CIES subject to the terms and conditions of the underlying investments. 

The financial eligibility of applicants under the new CIES is assessed by Invest Hong Kong, while entry, visa and residence applications pursuant to the new CIES are handled by the Immigration Department.  

What the new CIES means for employers

Employers should take note of the new CIES as holders of a visa issued under the new CIES have the right to work in Hong Kong and do not need to apply for a separate employment visa sponsored by the employer.

Also, since the new CIES provides another pathway for residency, this should open up a wider and more diversified pool of top-quality candidates for employers to choose from. 

Employers who are looking to recruit or relocate talent from abroad to Hong Kong in very senior / high-income positions with remuneration packages that meet the financial thresholds of the new CIES may share details of the new CIES with candidates as this may increase the attractiveness of the job opportunity / relocating to Hong Kong given the potential for the individual and his/her family to obtain permanent residence in Hong Kong.  

Key takeaways

The new CIES is expected to attract more top-talent to Hong Kong. This will benefit employers with their recruitment and staffing needs, giving them a larger and more diversified pool of top talent to choose from, and could also serve to incentivise and retain existing employees who may be interested in secondment opportunities or settling in Hong Kong. 

For media enquiries, please contact vanessa.ip@lewissilkin.com

The Labour Market Needs Test – what has changed? 

The Labour Market Needs Test is one of several criteria to be satisfied before an application can be made for a General Employment Permit or a Contract for Services Employment Permit. The 2024 Act removes the requirement for employers to place adverts for vacancies in print media. Instead, in advance of applying for such permits, the employer must place the adverts with the Department of Social Protection/EURES Employment Network (i.e. JobsIreland.ie) and an additional online platform for a minimum of 28 continuous days. The online platform can be any website, software or electronic technology that provides online publication of information, with the principal purpose being to publish offers of employment.

The information required to be included in the adverts has not changed.

However, no transitional arrangements have been announced for those who may already be in the process of satisfying the previous iteration of the Labour Market Needs Test and so it remains unclear whether applications submitted from 2 September 2024 will be accepted if they complied with that test. We will watch this space and let you know as we find out more. 

While many may have preferred the abolition of the Labour Market Needs Test entirely, removing the requirement to advertise a job vacancy in a national newspaper (an unfamiliar exercise for a modern workforce) is certainly welcome and makes the overall recruitment process less burdensome for employers – it is quite a straightforward step to include in any recruitment process the advertisement of future vacancies with the Department of Social Protection/EURES Employment Network and another online platform in order to satisfy the new test in the event the preferred candidate requires an employment permit.

What is the impact on subcontractor and agency arrangements? 

The modern workplace provides for a wide array of contractual arrangements beyond the usual employer and employee relationship. The 2024 Act recognises this and has expanded access to the employment permit system to employment agencies and subcontractors. 

Employment Agencies

Previously, employment agencies were strictly prohibited from being able to obtain employment permits for their agency workers. The new system will now allow for employment permits to be issued in situations where the salary of an employment permit holder is being paid by an entity other that the employer. This allows employment agencies to be listed as the employer of the employment permit holder, even when the individual will be carrying out work for a client of that employment agency and potentially be paid by that client. 

Traditional employment agencies will welcome this change as will “employers of record” which are a relatively new mechanism in Ireland.

Subcontractors

The 2024 Act will now also allow for subcontracting entities to have access to the employment permits system in the same manner as a main contractor. 

This is a welcome development for businesses, particularly those operating in the construction, telecommunications and civil engineering industries where it is increasingly challenging to find the necessary labour and which are dependent on subcontractors to assist with completing projects and satisfying contracts. Enabling subcontractors to avail of such permits will certainly help this sector. 

Improvements in efficiency and administration of employment permit system 

The primary aim of the 2024 Act is to improve efficiency in the employment permit system and, to achieve this, a number of changes are being introduced to simplify its administration including: 

a. Changing Employer 

Employment permit holders will now be able to change their employer to another employer after a period of nine months. Previously, there was an expectation that an employment permit holder would first need to complete 12 months employment with their current employer on an employment permit before they could seek to move employer. 

If they sought to move employer within that 12-month period, there would be grounds to refuse their subsequent employment permit application. The application of this rule could be waived in certain circumstances (for example, if the employee was made redundant or if the previous employer made a request). As a matter of general practice, the operation of the 12-month rule was widely considered not to be in the best interests of employment permit holders, especially those who were subject to adverse treatment in their workplace and felt they could not move for fear of not being able to obtain a new employment permit. 

There will also be discretion to grant a new permit prior to the nine-month period in cases evidencing a change of circumstances or instances of exploitation.

In addition to the above changes and specific to General Employment Permit and Critical Skills Employment Permit holders, the requirement to apply for a new employment permit has also been removed but only if the employment permit holder is moving within the same occupational classification as their existing employment permit:

(a) For General Employment Permit Holders, this means they won’t need to apply for an employment permit if they are changing to an employer within the same type of employment for which their employment permit was granted e.g. a lineworker can move to another lineworker role. 

(b) For Critical Skills Employment Permit Holders, they will be able to change employer across a broader category of employments e.g. a civil engineer may move into a different type of engineering role

Employment permit holders will be restricted to a maximum of three change of employer applications and certain requirements will need to be satisfied with each application. However, unlike new employment permit applications, it will not be necessary to satisfy the Labour Market Needs Test prior to each change of employer application. That will be welcome news to some employers and employees, but it is perhaps a curious decision. It is possible this will result in some employers actively poaching employees who have been working on an employment permit for at least nine months with competitors and who they can then employ without needing to satisfy a Labour Market Needs Test. 

b. Progression and Promotion

While not always required, where there was a material change to an employment permit holder’s terms and conditions of employment, such as a promotion, uplift in salary, change in employment location or change in role, then the Department could require the permit holder to undergo an entirely new employment permit application process.

The 2024 Act aims to improve the status and employment opportunities of employment permit holders and reduce accidental non-compliance with employment permits legislation by removing this requirement if the employment permit holder is promoted, receives an uplift in salary or is subject to an internal transfer within the employing company provided the permit holder will be using the same skills and the employment remains eligible for an employment permit. 

c. Indexation

Provision has been made to ensure remuneration thresholds for employment permits remain in line with average wage growth and to prevent future stagnation in these thresholds. Under the 2024 Act, the Minister can carry out a yearly review of the remuneration thresholds for employment permits using average wage growth calculated by the CSO. The intention of indexation is to increase the attractiveness of Ireland as a work destination and to ensure employment permit holders will continue to be able to afford to live in Ireland. However, it may have the opposite effect on employers who might experience remuneration increases as prohibitive to accessing a wider labour market. 

Also, at the beginning of 2024, increases to minimum remuneration thresholds for employment permits were announced with further increases proposed to be introduced on an incremental basis over the next few years. It will be interesting to see if the proposed increases to the minimum remuneration thresholds for employment permits will be implemented in early 2025 in light of this new indexation provision. 

d. Automatic Cancellation of Employment Permits

The Department does not allow an individual to hold more than one employment permit at any one time. This frequently caused logistical headaches for those applying for employment permits as they would need to cancel an existing and valid employment permit to allow for the grant of a new employment permit; often leaving an employment permit holder in right to work limbo. 

To address this, upon grant of an employment permit, the Minister will automatically cancel any other employment permit which is valid for that employment permit holder and will notify the employer identified on the employment permit.

e. Amending Employment Permit Applications

In an effort to eliminate, or at least reduce, the need to re-submit entirely new employment permit applications, the new Act gives the Minister the power to make an amendment to an application in certain circumstances. 

f. New six-month rule 

The 2024 Act requires employment permit holders to commence employment within a period of six months from when the employment is granted or comes into force. Previously, there was no cutoff date. This is aimed at ensuring permits are utilised promptly and to reduce delays in filling labour shortages. 

Seasonal Employment Permits 

While it has been widely anticipated, we will have to wait until 2025 for the introduction of the new Seasonal Employment Permit. 

The Seasonal Employment Permit will be a short-term employment permit allowing non-EEA nationals to work for a maximum of seven months per calendar year in a seasonally recurrent employment. This is designed to support specific economic sectors such as horticulture and agriculture in addressing labour market shortages. 

To acquire a Seasonal Employment Permit, the employer will need to be pre-register as a seasonal employer and will be issued with a certificate to confirm its status. This certificate will need to be renewed every 12 months, but it will also be transferable. Appropriate arrangements for accommodation and health insurance will also need to be made by the pre-approved seasonable employer. 

A pilot scheme for this new permit will be launched in 2025 and we await further information on this once the detail of the new scheme is published. 

Conclusion

The 2024 Act introduces significant changes to the employment permits system, making it more flexible, user-friendly, and above all, responsive to changing labour market needs. Employers should familiarise themselves with the changes, not only to ensure compliance, but also to take full advantage of the new opportunities being introduced.
For further information or support in relation to the changes to the employment permits system, or immigration law generally, please contact Declan Groarke.

table td {
vertical-align:top;
}

The eVisa roll-out is part of the UK’s plan to develop an entirely digital immigration system.

Millions of individuals have an eVisa already, for example through the EU Settlement Scheme. During 2024, the roll-out of eVisas will expand to replace physical documents like Biometric Residence Permits (BRP).

What are the implications of this change for employers?

Although an individual’s immigration permission is not affected by the transition to eVisa status, they may encounter difficulties with proving their immigration and travelling to the UK if they do not obtain an eVisa by the end of this year.

To avoid business disruption, employers should start planning a communications strategy to notify affected staff that they need to apply for a UKVI account. They should also decide what level of assistance to provide for the application process itself.

What will affected individuals need to do?

On 6 August 2024, the Home Office announced that all biometric card holders, including BRP holders can apply for an eVisa online. Previously, only BRP holders who received a personal invitation or who received instructions in their visa application approval email were eligible to apply for an eVisa.

Affected individuals, identified in the table below, must create a UKVI account which involves verifying their identity using the ‘UK Immigration ID Check’ app. The Home Office will then link the eVisa to the UKVI account. This can take a few days. After that, the individual should receive an email notifying them that their eVisa is available to view online.

Who is affected?

The table summarises the position for holders of specific document types and the action the individual should take.

What should affected individuals ensure when travelling to the UK?

Affected individuals should continue to travel with their physical immigration documents throughout 2024. The Home Office plans for carriers (including transport operators such as airlines, ferry, and international train operators) to be able to access the immigration status of passengers travelling on their services automatically from Summer 2024. Passengers will present their passport which is linked to their UKVI account. This should automate the existing routine checks.

Individuals who have an eVisa should update their UKVI account with any passport on which they intend to travel, using the “update my details” service if it is not already linked to their account. They can do this using the ‘update my details’ service on their UKVI account.

From 2025, those who have not obtained a UKVI account will need to do so to avoid potential travel disruption.

What does this mean for individuals who already have a UKVI account?

For individuals who already have and use a UKVI account, for example who have been granted status through the EU Settlement Scheme or who used the ID checking app when applying for their visa, nothing will change. They should continue to present employers with a share code for right to work checks.

If you would like assistance with devising a communications strategy for your business, please contact a member of our Immigration Team.

A biometric card holder means anyone with a biometric chip in their immigration document, such as a  Biometric Residence Permits (BRPs), Biometric Residence Card (BRCs) or a Frontier Worker permit.

In this article, we look at how employers are impacted by the eVisa roll-out and when a repeat right to work check is needed. 

For biometric card holders, the method used for the initial check will determine the timing for a repeat check 

There are two main scenarios where repeat checks are needed on holders of biometric cards, including Biometric Residence Permits (BRPs), Biometric Residence Cards (BRCs) and Frontier Worker permits. 

1. If a manual right to work check was performed, a repeat online right to work check is needed to retain the statutory excuse beyond 31 December 2024

Before 6 April 2022, it was possible for BRP and BRC holders to prove their right to work using their physical document, rather than being required to use the Home Office’s online right to work check system. Where an individual opted to do this, the expiry of their BRP or BRC will have been listed as 31 December 2024, unless their immigration permission was due to expire before this date.

For an employer to retain the statutory excuse beyond 31 December 2024, they must complete an online right to work check before the expiry of the document they used to prove their right to work, rather than before the expiry of the person’s immigration permission. 

The Home Office started adding the 31 December 2024 date to biometric documents on 1 January 2020, so there is a potentially large cohort of employees who may need a repeat check. Employers may wish to perform repeat checks early, to avoid a bottleneck towards the end of the year. 

2. If a compliant online right to work check was performed, a repeat check is not needed if an employee’s immigration permission expires after 31 December 2024

On 6 April 2022, online right to work checks became mandatory for those with biometric cards. As part of the right to work check process an employer will retain the profile page, which confirms when the individual’s immigration permission expires. A repeat check is not needed if an employee’s immigration permission expires after 31 December 2024. 

No action is required for other types of right to work check that give an employer a continuous statutory excuse, but these individuals may be required to create a UKVI account in the future. 

Find out what employers can do to minimise the impact of the change on repeat right to work checks in our previous article, How to avoid a right to work check headache when BRPs are phased out.

For pre-settled status holders, no repeat right to work check is needed

The Home Office’s Employer’s guide to right to work checks confirms that repeat right to work checks are no longer required for pre-settled status holders. This means that an employer is only required to complete an initial right to work check before the first day of employment.

See our previous article on pre-settled status improvements for more detail.

More questions about eVisas?

Read our previous articles, eVisas are now available to all BRP holders and eVisa essentials for employers, to learn who is affected and what action is required. 

HR teams may wish to prepare internal communications to alert affected employees of the need to apply for an eVisa. This will help reassure employees that they are supported by their employer and may minimise business and/or personal disruption e.g. to international travel.

If you have any queries about the issues raised in this article or would like to find out about our eVisa training and tools, please contact a member of our immigration team.

Following a mass stabbing incident in Southport on 29 July 2024, there has been widespread rioting in towns and cities across England and in Belfast. Before the perpetrator’s identity was confirmed, false claims circulated online that he was a Muslim asylum seeker who had arrived in the UK by boat. Members of the far right, largely driven by social media, began gathering in anti-immigration protests. These have descended into Islamophobic and racist attacks, looting, and violent clashes with both opposing groups and the police.
 
Periods of social unrest have an impact on everyone, and so inevitably affect the workplace. We have previously written about employer responsibilities during Hong Kong’s summer of unrest. There will be similar considerations for UK employers who will need to focus on employee safety. 

How can the riots impact employees? 

There are various ways in which the current situation can affect employees, including the following:

• Employees may no longer feel safe to go into to work for fear of being targeted during any social unrest, especially if they work in certain sectors such as retail or hospitality.  It has been widely reported that many shops or businesses along high streets have been looted or vandalised.
• Some employees may feel particularly vulnerable in public-facing workplaces because of the possibility of racist abuse or attacks.  Employees who are identifiable as a Muslim are particularly at risk, as are those who might be perceived as Muslim or a recent immigrant.
   
• Employees may also fear encountering violent protests or being subjected to abuse when commuting to work, particularly if they are likely to be targeted by Islamophobic or racist behaviour.  For example, someone who wears a hijab may currently feel unsafe travelling in an area where a far-right gathering is planned.
   
• Employees may be upset, distracted or withdrawn at work and find it difficult to focus. 
• Discussions amongst employees about the protests and immigration may be divisive. Employees may be offended by the views of their colleagues expressed at work or on social media. This may give rise to increased tensions in the workplace and possibly an uptick in grievances.

• Any of these concerns may mean that some employees may ask to take time off, work from home or change their work hours. 

What are your obligations? 

Health and safety 

Employers have statutory duties to provide a safe place of work.  This duty to ensure the health, safety and the welfare of employees extends to the workplace, or wherever an employee is acting in the course of their employment. This would cover risks of being targeted by social unrest while at work but is unlikely to include risks employees may face while travelling to or from work.
 
There is also a general common law duty to take reasonable care for the health and safety of employees. The riots are an important context here.  It is certainly possible that employers could be found to have duties to protect employees from any abuse or exposure to these riots in their workplace, such as a shop on the high street – particularly if you are aware that a far-right gathering is planned for a particular location.  It is also possible that this could extend to the commute to work.  Although we are not currently aware of this duty being applied to an employee’s commute, it is certainly arguable that an employer who requires a vulnerable employee to travel to work through an area of social unrest is failing to take reasonable care for that individual’s health and safety.

A failure to comply with health and safety obligations can result in fines and, in some cases, imprisonment. A breach of the duty of care may also result in personal injury claims from any impacted employee.

Trust and confidence

We have written about this right previously in the context of the Covid-19 pandemic  but this right could also apply where an employee reasonably believes that their workplace is dangerous due to its proximity to riots. Employees in this situation would potentially be protected from disciplinary action if they leave work, or if they refuse to work in any dangerous part of their place of work (e.g. the shop floor).

This right is intended to protect employees from urgent dangers in their workplace, where there is no other reasonable option – so general concerns in the absence of a specific gathering near the workplace may not be enough.  However, Muslim or other vulnerable members of staff may more easily be able to show that they are likely to be targeted and so their beliefs of danger are reasonable.

Does this protection extend to an employee’s commute? As discussed in our previous article, while “place of work” is included in section 44, no references are made to travel to or from work.  In the context of the Covid-19 pandemic, the Court of Appeal said in Rodgers v Leeds Laser Cutting Ltd that the perceived danger must arise at the workplace, and so section 44 does not apply to the journey to work.  Although this finding wasn’t directly relevant to the decision in that case, it is a strong indication that the law is not be intended to cover perceived dangers during a commute to work.  

Discrimination claims

The racist and anti-immigration nature of the riots means that they may particularly affect those with a particular religion or race (which includes colour, nationality and ethnic or national origin). For example, if an employee who is a Muslim asked to work from home as they live in an area with rioting and feel unsafe to commute to work, and this is refused, this could give rise to a claim for indirect discrimination.  The employee could argue that the employer’s requirement to come to work in these circumstances disadvantages them personally and Muslims as a group.

An employer can justify indirect discrimination if the requirement is based on a legitimate aim and is proportionate.  However, it may be difficult for an employer to justify requiring a vulnerable employee to attend work if they are at genuine risk of abuse or attacks, either during the commute to work or at the workplace itself. This is particularly if the riots are short term.

What can you do to help? 

Our recommended approach is as follows: 

• Employers should regularly assess the risk in each workplace. Employers should keep up to date with the news reports, social media, government guidance and police advice in your area to ensure awareness of any particular instructions or processes to be followed. Depending on the level of risk, you should have a business contingency plan that can be implemented on short notice.
• If based in a location which is experiencing rioting, employers should consider adjustments that could be made.  If possible, this could include either allowing employees to temporarily work from home, or adjusting working hours so that they can avoid entering town and city centres in the evening during any planned demonstrations.  We have recently taken similar steps ourselves for staff in our city centre Belfast and Manchester offices. Other possible measures could include covering the cost of taxis or allocating travel buddies. 
• Consider whether it is possible to temporarily change the place of work.  For example, if you have multiple offices or sites, could an employee work from a place where no far-right gatherings are planned?
• If employees are client facing (e.g. working in shop, bar, hotel or a restaurant) and/or based within a city centre, ensure that any temporary measures or contingency plans have been clearly communicated, in the event that rioting breaks out in your area. 
• Media coverage has shown many businesses have decided to board up their windows and close early amid riot fears in their area. If you decide to temporarily shut a particular office or site, ensure that this is communicated as far in advance as possible to employees. If the employees are ready and willing to work, they should still be paid in the usual way, unless the employment contract specifies otherwise.
• Be sensitive towards employees from targeted groups who are feeling particularly vulnerable, and ensure you listen to their concerns.  It may be necessary to make additional adjustments for some groups.
• Handle any divisive expressions of views sensitively. The scope of “protected beliefs” under the Equality Act 2010 is wide, and employees may be protected in expressing their views on, say, immigration (even if they are inflammatory). Our recent podcast on navigating tensions in a diverse workplace offers practical strategies for employers to ensure a respectful and inclusive environment.
• Finally, don’t overlook the mental health implications for your employees.  This is a particularly difficult time for targeted groups, but all employees may be affected in different ways. Consider reaching out to employees and make them aware of any available support, such as mental health first aiders, HR contacts, diversity and inclusion representatives or any Employee Assistance Programmes.

The eVisa roll-out involves the replacement of physical immigration documents with digital immigration status. The initiative was launched under the previous Government with a target completion date of 31 December 2024.

The Home Office updated their eVisa guidance to reflect this change.

We are happy to answer any questions you may have about this development. We can also assist with any internal communications you may wish to send to your employees to explain what action is required before the deadline. Please get in touch with your usual Lewis Silkin immigration team contact.

Employers should review their right to work processes to make sure that they will retain the statutory excuse after 31 December 2024. Keep a look-out for our ‘quick guide’ to repeat right to work checks, which will be published on our Insights page shortly.

The Home Secretary, Yvette Cooper, made the announcement to Parliament on 30 July 2024.

Labour plans to retain the strict Immigration Rules introduced under the previous Government

Labour will continue to implement the majority of the Conservative’s ‘five-point plan’ to reduce net-migration. The five-point plan saw the roll-out of stricter Immigration Rules, which were introduced to curb immigration abuses and deliver the biggest ever reduction in net migration.

Employers had hoped that Labour would re-set some of the changes or at least adjust the minimum salary thresholds under work routes. Labour is in favour of the strict Immigration Rules and will continue to implement them. This includes:

• ‘Restricting most overseas students from bringing family members to the UK.
• Restricting the ability of care workers and senior care workers to bring dependants with them and requiring all care providers sponsoring migrants to register with the Care Quality Commission.
• Increasing the general salary threshold for those arriving on Skilled Worker visas by 48% from £26,200 to £38,700.
• Abolishing the 20% going rate discount so that employers can no longer pay migrants less than UK workers in shortage occupations.’

The Migration Advisory Committee (MAC) will be strengthened 

Labour had already said that it planned to enlist the MAC in informing immigration policy far more. They intend to do this by sending Home Office staff to the MAC to ensure ‘it is able to work more strategically to forecast future trends, alongside continuing to review and provide independent, evidence-based recommendations on key areas of the immigration system’.

Labour expects the MAC to work with new and pre-existing cross-governmental bodies like Skills England. This cooperative approach is the catalyst to join up immigration, skills and labour market policies. There is mention of a framework to facilitate this, but no detail at this stage on how this will work in practice.

The MAC will be commissioned to conduct a review of the reliance of key sectors on international recruitment

The MAC will focus on IT and engineering to start with. We anticipated that the Health & Care sector and construction sector would have been targeted too, but perhaps this will follow later.

The announcement does not confirm when it will commission the MAC, but we assume this will happen within the next few months. We presume it will involve a call for evidence and external stakeholder engagement, rather than a ‘rapid review’.

Labour will pause the minimum income requirement for 5-year partner visas at £29,000 while they commission the MAC to conduct a review

The minimum income threshold is currently set at £29,000 and was due to increase later this year to £34,500 and again in early 2025 to £38,700. Labour confirms the threshold will remain at £29,000 until the MAC’s review is complete. This is a welcomed development. 

The reasoning for the review and decision to pause the rate was centred on the previous Government’s assertion that there is ‘a need to balance a respect for family life whilst also ensuring the economic wellbeing of the UK is maintained’.

Again, we assume this will happen within the next few months and that it will include a call for evidence and external stakeholder engagement.

There is no change to the Conservative plan to crackdown on abuse in Student and Graduate routes

Labour announced that it plans to continue to implement measures introduced under the Conservative government, following the MAC’s rapid review of the Graduate route. The measures include regulation of the recruitment of international students, scrutinising evidence used to meet financial requirements and reviewing English language assessments.

Labour wants universities to cooperate with the Department of Education to ensure the measures are effective and that the system is protected from exploitation.

Keep in touch with Lewis Silkin for further updates and assistance

We will be monitoring immigration law developments throughout 2024. You can stay updated by following our Labour Policy Impact Hub and our Immigration Law Policy Dashboard. We will publish further information once it becomes available. You can sign up here to receive our updates.

If you have queries on any of the topics raised in this article, please get in touch with our Immigration Team.