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,

Under the Home Office’s current guidance for right to work checks (RTW), it is possible to conduct a fully compliant initial or follow-up RTW without seeing the individual face-to-face. To cover practical difficulties arising during the COVID-19 pandemic, mainly where the checker cannot easily gain access to original documents required for a manual RTW, the Home Office has instituted a temporary adjusted procedure.

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We have summarised the options and procedures below, as well as highlighting some general points to be aware of while the adjusted procedure remains in place.

Key points from latest guidance and situation

On 30 March 2020 the Home Office implemented adjusted procedures for conducting a RTW check in light of the COVID-19 pandemic. These were due to end on 31 August 2021 but have been extended to 5 April 2022, following a last-minute announcement on 26 August 2021. The continuation of adjusted checks is helpful for employers and employees because a significant number of HR staff and other employees continue to work from home, and employees are reluctant to part with their valuable physical identity documents where these are required.

What is different about this extended deadline is that in the interim, the Home Office plans to develop a new digital solution to include those who cannot use the existing online RTW system. This will include British and Irish citizens. It is likely that if the solution is not in place by the 5 April 2022 deadline, it will be extended again.

A fully compliant RTW can be done in one of two ways, without face-to-face contact.

1. Remote RTW check for individuals who are eligible to use the Home Office’s online RTW services

For employees who are able to access the Home Office’s online RTW services, it is possible to conduct a compliant RTW while they are present via a video call. The employee must give their permission for an online RTW to be carried out. If the individual has physical documents, they can opt for a manual RTW rather than using the online service, however in practice this is relatively rare.

Individuals who have been issued with a biometric residence permit (BRP) or biometric residence card (BRC) number should access their online immigration record can be found at Prove your right to work to an employer (GOV.UK).

Those who have settled or pre-settled status under the EU Settlement Scheme, or who received an eVisa after using the UK Immigration ID app should access it at View and prove your immigration status (GOV.UK).

Irrespective of which online access point an individual uses, they will need to follow the prompts to create a one-time use share code and provide you with this, either as an email generated through the GOV.UK website or by them taking a note of the share code and advising you of it. The share code must be used within 30 days of its creation. Please be aware that the Home Office will have a clear audit record of the time and date you use the code to carry out the RTW. To ensure you are covered by the excuse against having to pay a civil penalty for illegal working, you must make sure you do the online check before the person actually starts work, or before their current immigration permission expires if it is a repeat check.

You must use the employer’s link at View a job applicant’s right to work details (GOV.UK) to login with the code. Viewing the individual’s record via their access point is not sufficient.

Once you have logged in, you will be able to view the individual’s profile along with what employment they are allowed to undertake on their visa status. If the person has an outstanding immigration application (e.g. to move from pre-settled status to settled status), the online system may only show the outstanding application rather than the expiry of the person’s existing immigration permission. If this happens, the person should contact the Home Office and ask for their record to be amended to show their existing immigration permission.

You should check the photograph depicted as well as any employment restrictions that are advised on their record. You should login while the person is present via a live video call so you can confirm they are the person depicted on their online profile, just as you would for a standard face-to-face RTW.

Please ensure that you keep a copy of the online check. We would suggest a screenshot of the video call open concurrently with the online RTW screen showing the person’s details as best practice, but this is not essential. You can save this as a hard or soft copy but it should be in an unalterable format, dated and clearly identifying the person taking the check so that it is clear they are an authorised and appropriate employee of the employing business, taking the check on or before the individual’s first day of employment, or, for a repeat check, before the expiry of the person’s existing immigration permission (in the usual way for a valid RTW).

2. Remote RTW check for everyone else

For those who do not have access to the online RTW process, for example, British and Irish citizens, you can conduct the RTW if you are in possession of their original evidence of right to work, e.g. their current passport, and then checking its validity etc in the usual way but via a video call. The same records must be retained i.e. certified dated copies either in hard copy or soft copy.

The person conducting the check must see the original document to check it appears to be genuine and unaltered, and to verify the image on the document (if there is one) against the appearance of the person on the video call. This option may not be preferred or feasible given the logistical issues involved where one or more parties are working from home or where there is a reluctance to courier or drop off original documents for checking.

Adjusted procedure during the COVID-19 pandemic

Following the Home Office announcement to extend the adjusted RTW procedure until 5 April 2022, employers can continue for the time-being to carry out adjusted RTW checks in a way that takes into account the ongoing impacts of the COVID-19 pandemic.

Under the adjusted procedure, employers should take the following steps:

a. Ask the prospective or existing employee to provide you with a scan or photo of their RTW documents

b. Hold a video call with the person and ask them to hold up their original documents

c. Check the documents shown in the call against the scan/photo received (we would also suggest that you check these against the physical appearance of the person on the call and that you take a screenshot of the video call and the person holding up their documents)

d. Mark the copies with the printed name of the person conducting the check and the wording ‘adjusted check undertaken on [date] due to COVID-19’

If the person cannot show their documents, for example because they have an outstanding application with the Home Office, you should contact the Employer Checking Service and obtain a Positive Verification Notice (PVN). This will provide a statutory excuse for six months. After this time a further PVN will be required unless the worker is able to satisfy a fully compliant RTW or a RTW under the adjusted procedure in the interim.

You may choose not to use the COVID-19 adjusted procedure where it is operationally feasible to do so. This might be possible where employees who undertake RTWs have returned to the workplace and the individuals for whom a retrospective check is required either agree to courier their original documents to the workplace, or to complete a face-to-face check at the workplace.

Any individual employed between 30 March 2020 and 5 April 2022 will not be subject to a retrospective manual RTW check where the adjusted procedure was used. However, if it comes to light that an individual employed during the period when an adjusted RTW check was used does not in fact have the right to work, the Home Office will expect you to end their employment.

Right to work checks for those covered by the COVID-19 concession for starting work with a sponsored worker application pending

Since 14 April 2020, the Home Office has provided a concession relating to certain sponsored workers with applications pending. This concession currently only covers those who have applied for a Health and Care visa, however it previously also covered any individual whose Certificate of Sponsorship was assigned under the Skilled Worker, Health and Care Worker, Intra-Company Transfer, Tier 2 or Tier 5 categories on or before 31 December 2020.

The concession permits an individual to commence work before a decision has been reached on their application in the following circumstances:

• A certificate of sponsorship has been assigned

• An application has been submitted before the current visa has expired

• The job start date is the same as on the certificate of sponsorship

The Home Office has not issued corresponding guidance covering RTW requirements where the concession has been used.

In the absence of a published policy from the Home Office, in addition to the documentation you would normally keep as part of your recordkeeping duties as a sponsor (ensuring these documents are in line with the information on the assigned CoS), we would suggest the following documentation is kept:

• Print-out of the COVID-19 advice for UK visa applicants and temporary residents on GOV.UK, as it appears on the date the person is due to start work

• Print-out of proof of the date the person’s pending application was submitted (this date must be before the date they start work in the role the application relates to)

• Agreement from the person that they will notify you as soon as they receive any communication from the Home Office about the validity or outcome of their application

As a back-up you should schedule reminders to follow up with the applicant in the same way as you would for any other employee with a pending immigration application.

You should also contact the Employer Checking Service and request a Positive Verification Notice, however a negative notice should not be taken as conclusive evidence the person does not have the right to work under the concession. This is because the Home Office’s internal systems may not have been updated to recognise the right to work flowing from the concession. If this happens, you should contact the Home Office to explain the situation and ask for a Positive Verification Notice to be issued.

You should carry out a full right to RTW as soon as possible once the person has their new BRP details, adding a wording such as “the individual’s contract commenced on [insert date] under the COVID-19 concession for individuals with a pending sponsored worker application for further leave to remain. The prescribed right to work check was undertaken on [insert date] following the availability of [his/her] BRP.”

In the event of the visa application being rejected, you must stop sponsoring the worker and they must stop working for you immediately. You should seek employment advice for this scenario.

Right to work checks for those who are unable to leave the UK and have applied for or have been granted exceptional assurance

The exceptional assurance process is an arrangement the Home Office has put in place for those who intend to leave the UK but are unable to do so before the expiry of their immigration permission due to factors relating to the pandemic. The current policy is available here.

In some cases it will be preferable for any employees who are unable to depart the UK but who want to continue to be able to work to consider making an application for further leave to remain before their leave expires. We are able to advise on the options for this as needed.

Where exceptional assurance has been requested or successfully granted, it will provide short term protection against any adverse action. If previous immigration conditions allowed an individual to work, study or rent, then they may continue to do so during the time the request for exceptional assurance is outstanding, and during the period of exceptional assurance once granted.

An individual will have to reapply for exceptional assurance where their circumstances have changed or they are unable to leave the UK by the date given.

A person who has exceptional assurance will be able to apply for permission to stay in the UK before it expires. They must meet the requirements for the route they wish to apply under and the route must be one that allows an in-country application to be made

For those employees who have requested or have been granted exceptional assurance, we would suggest that you contact the Employer Checking Service to request a Positive Verification Notice.

We would also suggest that you copy and retain:

• The Home Office’s COVID-19 guidance for applicants, as at the date of the check

• The correspondence between the applicant and the Home Office confirming submission of the request for exceptional assurance and its grant

You should ask the employee to keep you updated on the progress of any outstanding request for exceptional assurance and set a reminder to follow up with the person periodically, eg fortnightly. You should also set a reminder for further confirmation of their status ahead of the expiry date of the exceptional assurance once granted.

What happens if we employ someone to work illegally?

Employing someone to work illegally will generally make an employer liable for a civil penalty and a fully compliant RTW is the only way to be sure of reducing the £20,000 penalty to £0. Should the Home Office deem that you knew or should reasonably have known the individual was working illegally, then this would be dealt with as a criminal matter, which can attract an unlimited fine and up to five years imprisonment. It is therefore crucial to have robust systems in place for compliance.

The Home Office do have the option to reduce the penalty where there are mitigating factors but no fully compliant RTW. Usually, they would reduce the penalty by £5,000 for each mitigating factor from the below list of four accepted mitigating factors:

a. where the employer has self-reported the suspicion of illegal working;

b. has conducted a partial RTW;

c. has cooperated with the Home Office on the investigation; and/or

d. has generally robust systems in place for the prevention of illegal working.

Where it is a first breach, it is possible to reduce the penalty to £0. However, if it is not a first breach, the penalty usually cannot be reduced to less than £5,000 per illegal worker. It cannot be guaranteed that the Home Office would extend its discretion to reduce the penalties for reasons beyond those listed.

Any civil or criminal sanctions imposed may also affect an employer’s sponsor licence. It is therefore very important to take all practical steps to ensure that all employees have the necessary right to work in the role they have been hired for.

Other important points to note during the COVID-19 pandemic

You should continue to bear in mind that according to the Home Office’s current published guidance, only those documents on the Home Office’s RTW checklist are acceptable as evidence of right to work, even if you are using the adjusted procedure. The list can be found here. The situation has been complicated by the introduction of the concessions for sponsored workers and those with exceptional assurance, and the Home Office has not issued any specific guidance to cover these people.

You should also be cautious not to make arrangements that you may be held to know, or to have reasonable cause to believe, constitute illegal working.

Less obvious examples of illegal working that may occur include:

• Employing a sponsored employee in a role other than the one they have been sponsored to carry out, unless they meet the requirements of the published concession for sponsored worker applicants (this could be an issue currently where you are trying to reallocate staff due to changed business needs during the pandemic)

• Allowing a Student to work above the maximum number of hours a week they are allowed to work during term-time

• Allowing a Student to work at all if it comes to light that they have dropped out of their studies

Lastly, it will be important to be alive to the possibility of impersonation in the current circumstances, particularly if the copies of documents or image on the video call are not clear. Caution should be taken when carrying out RTW checks, as retrospective checks are not required for those employed during the duration the adjusted checks are operational. However, where an individual is found not to have appropriate status to work, you will have to take steps to terminate their employment.

Please contact our immigration team if you have any questions or require further assistance.

 

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

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

The latest Statement of Changes in Immigration Rules includes a new International Sportsperson visa route for professional athletes coming to work in the UK. The route will launch from 9 am on 11 October 2021.

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The Statement of Changes describes the new route as follows:

The International Sportsperson route is for an elite sportsperson or qualified sports coach who is internationally established and can make a significant contribution to the development of their sport at its highest level in the UK.

The route will replace the T5 (Creative & Sporting) and Tier 2 (Sportsperson) visa routes, merging the two into one category. Practically speaking, the route is largely a rebrand of the current system, with a short-term option mirroring the T5 route and a long-term option mirroring the Tier 2 route.

Despite media reports to the contrary, International Sportsperson is not a fast-track route, nor is it a Global Talent visa. The validity, suitability and eligibility requirements for the route will be set out in the Immigration Rules in a new Appendix International Sportsperson.

Obtaining immigration permission under the route is still a two-stage process:

• Obtain a Governing Body Endorsement from the Governing Body for the relevant sport; and
• Apply for entry clearance or permission to stay under the International Sportsperson visa route.

Each sport has its own Governing Body Endorsement (GBE) criteria agreed with the Home Office. The GBE ensures the person to be sponsored is adequately assessed as being an elite sportsperson or qualified coach.

Once the GBE is issued, the sponsoring club can assign a Certificate of Sponsorship enabling the player or coach to complete an entry clearance or permission to stay application. Biometrics must be enrolled at a visa application centre unless the person is an EEA or Swiss national, in which case they can use the UK Immigration ID Check app to verify their identity.

As is the case under the current T5 process, a person applying as an International Sportsperson for an initial period of 12 months or less will not need to meet an English Language requirement. This is crucial to allow international players and coaches to complete transfers quickly. To obtain a visa of more than 12 months, the player or coach will need to meet an English language requirement, which is Level A1 on the Common European Framework of Reference for languages (basic proficiency).

In one of the few changes to the rules, the continuous residence requirement for settlement as an International Sportsperson can include time spent in the short-term route, unlike the current rules where time spent in T5 does not count toward settlement in the UK.

Under the new route there is no longer an option for a non-visa national to request entry at the border for a period of three months or less; entry clearance is required in all cases. However, it will be possible for those who enter the UK as a visitor (including as a permitted paid engagement visitor) for the purpose of undertaking certain sports-related activities to switch to the route after arrival.

Sponsor guidance for the route will be published in line with the new Rules and should be available from 11 October 2021. Significant substantive changes to the criteria for sponsors are not anticipated.

The Home Office has contacted Tier 2 Sportsperson and T5 Creative and Sporting sponsors to advise the following regarding the transition to the International Sportsperson and Temporary Work – Creative Worker route:

• Access to the Sponsor Management System (SMS) for the above sponsors will be unavailable from approximately 19:00 on Friday 8 October 2021 to approximately 09:00 on Monday 11 October 2021.
• When the SMS is made unavailable, all incomplete applications to add routes to an existing licence will be deleted.
• Any Certificates of Sponsorship (CoS) in the above routes that are ‘ready to go’ will be changed to ‘work in progress’ and cannot be assigned. ‘Assigned’ or ‘Used’ CoS are unaffected.
• Any licences due to expire between 8 and 11 October 2021 should be renewed before the SMS is made unavailable on 8 October 2021, however if this is not possible, the licence will be extended for four calendar days.
• The initial CoS allocation under an International Sportsperson sponsor licence will be set at the number of unassigned CoS available on 10 October 2021 under T2 Sportsperson plus T5 Creative and Sporting (where the sponsor is registered as a sports body)
• Where a sponsor has a T5 Creative and Sporting sponsor licence within a creative category, it will become a Creative Worker licence on 11 October 2021, with the initial CoS allocation being set at the number of unassigned CoS available under the T5 licence on 10 October 2021.

If you have any queries or would like further information about these changes, please contact Andrew Osborne, Supinder Singh Sian, Stephen O’Flaherty or Sophie Hunter.

Related Item(s): Immigration & Global Mobility, Sports Employment & Immigration

Author(s)/Speaker(s): Andrew Osborne, Supinder Singh Sian, Stephen OFlaherty, Sophie Hunter,

On 31 August 2021 the right to work guidance for employers was updated to confirm that individuals with a late EU Settlement Scheme (EUSS) application made on or after 1 July 2021 can start a new job while their application is pending. In this article we look at this development, as well as highlighting certain aspects of the current guidance that may cause confusion for employers when conducting right to work checks.

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Amendments to the Employer right to work checks supporting guidance (also known as ‘An employer’s guide to right to work checks’) were made following an announcement by the Home Office on 6 August 2021. The announcement confirms that EEA and Swiss (‘EEA’) citizens and their family members who missed the 30 June 2021 EUSS deadline will have ‘temporary protection’ of their rights until any late application they make is finally determined (including any appeal if relevant).

The announcement also confirms that joining family members will have temporary protection for the first three months after they arrive in the UK, and while an EUSS application submitted within those three months is pending (including the up to the finalisation of any appeal if relevant). Immigration Rules due to come into effect on 6 October 2021 will enable joining family members to switch from visitor status to EUSS in-country, however there is currently still some uncertainty over how these people will be considered by Border Force in practice on arrival.

Despite these changes, in some cases we have seen that for late applications made on or after 1 July 2021, individuals have been issued with a Certificate of Application (CoA) noting that they do not have the right to work. In this situation, we would suggest that an Employer Checking Service check is carried out despite the apparent prohibition on working, and for the individual to contact the Home Office to request an amended CoA.

Right to work process for people who have made an EUSS application on or after 1 July 2021

The guidance now confirms that a person who has made a late EUSS application on or after 1 July 2021 will have a right to work while it and any related appeal is pending. Although it is not explicitly stated in the guidance, based on the Home Office’s announcement on temporary protection, it appears that a joining family member who applies under the scheme more than three months of their arrival will not have a right to work.

If an employee or prospective employee has been issued with a ‘digital’ Certificate of Application (CoA), this will enable them to issue a share code for an employer to conduct part of a right to work check online. However, for this scenario, the online system will signpost the employer to also carry out a check through the (ECS). Once the ECS check is completed, the employer should retain the resulting Positive Verification Notice (PVN) and carry out a further right to work check within six months of the date of the PVN. It is not clear whether an employer is required also to keep a screenshot of the online profile page if the person has been issued with a digital CoA, however this may be prudent.

If the person has a ‘non-digital’ CoA, i.e. a letter or email from the Home Office, the employer must take and retain a copy of this, and then also proceed to obtain and retain a PVN from the ECS.

Right to work process for people employed by 30 June 2021 who have not yet made an EUSS application

The guidance states that if it comes to light that an existing employee who started work on or before 30 June 2021 failed to apply under the EUSS by the 30 June 2021 deadline, their employer can continue to employ them. The employer must advise them to apply to the EUSS within 28 days. The employer should then carry out a right to work check based on the application having been made. They should only take steps to terminate the person’s employment if the person still has not applied after 28 days.

The previous 31 December 2021 end date for this policy has been removed from the guidance, and it has been made more prescriptive about the documentation the employer must keep, i.e. a copy of the individual’s CoA and a PVN from the ECS. Again, it is not clear whether an employer is required also to keep a screenshot of the online profile page if the person has been issued with a digital CoA, however this may be prudent.

Indefinite leave to enter or remain endorsements for EEA nationals

The guidance confirms that if an EEA national holds indefinite leave to enter or remain under the Immigration Rules, they may rely on this for a right to work check.

One potential issue that may arise for this group is that such an endorsement may be in an expired passport. Where this is the case, a new employer checking right to work on or after 1 July 2021 will not be able to use this to form the basis of a statutory excuse against liability for an illegal working civil penalty. The person would need to apply for a Biometric Residence Permit (BRP) for a compliant right to work check to be completed. While any BRP application is pending, the person’s right to work could initially be verified by using the ECS and requesting a PVN. The employer would then need to carry out a repeat check before the PVN expires, either on the issued BRP or by carrying out a further ECS check (if the application is still pending at that stage).

If an employer chooses to carry out a retrospective check for an EEA employee who started work on or before 30 June 2021, there will be no need for that person to apply for a BRP. A statutory excuse will remain available if a compliant right to work check was completed before the employment began. This may have been completed using the person’s EEA passport, or the indefinite leave endorsement if it was in a valid passport at the time of the check, or in an expired passport where the check was carried out before 16 May 2014.

EU Settlement Scheme family permits and EEA family permits

The current guidance is clear that a valid EU Settlement Scheme Family Permit can be used to form the basis of a statutory excuse, provided the employer takes a copy of the passport information page as well as the permit.

EEA family permits ceased to be valid after 30 June 2021, even if the date of expiry endorsed on them is later than this. These cannot currently be relied upon for a right to work check.

Biometric residence cards issued by the UK in accordance with EU law

Biometric residence cards (BRCs) issued under EU law ceased to be valid after 30 June 2021, unless the holder has been granted status under the EUSS. Currently there is no confirmation in the guidance about how an employer can adequately verify that an individual has EUSS status when carrying out a manual check of a BRC. To err on the side of caution, an employer presented with a BRC may therefore wish to consider conducting an online check based on the person’s EUSS approval or their BRC details instead.

COVID-19 adjusted right to work process

The COVID-19 adjusted right to work check process was due to end on 31 August 2021 but has been extended to at least 5 April 2022. For further information on this announcement, see our previous article here.

If you have any queries about the issues covered in this article, please contact a member of our Immigration Team or sign up for our Immigration Law Academy on 22 and 23 September, where we will be looking at recent right to work changes in detail.

 

Related Item(s): Immigration & Global Mobility, Right to Work, Recruiting from the EU

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

On 26 August 2021 the Home Office released a sponsorship roadmap document. This details process and technology improvements for sponsors from the fourth quarter of 2021 to the first quarter of 2024.

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The roadmap focuses on the sponsorship system for workers. Details on reforms to student sponsorship are expected to be made available in a separate document at a later date.

The benefits of these reform measures will be immediately obvious for sponsors, for whom the existing processes are cumbersome and costly to administer. The sponsor management system, which has been in place since 2008, is also limited in functionality and is need of replacement.

The IT transformation piece of the work is ambitious and complex, so will need to be thoroughly tested by limited groups initially before being extended to all users. Depending on the testing outcomes, it is possible that the time-frames outlined below may need to be revised.

It is however encouraging that businesses and other key stakeholders will be engaged throughout the design and delivery process, and can expect to receive regular communications on progress.

Sponsorship reforms in 2021

The Home Office’s planned sponsorship reforms in 2021 are threefold.

Firstly, the sponsorship process will be accelerated through reviewing and simplifying the documentary evidence required to become a licensed sponsor.

Secondly, the final quarter of 2021 will see sponsor experience improvements, including a new bespoke support service for small and micro businesses, a review of sponsorship system fees and the launch of an enhanced Skilled Worker eligibility checking tool.

Thirdly, an inter-departmental salary check process will be piloted with HMRC from the final quarter of 2021.

Reforms from 2022 onwards

From 2022 to the first quarter of 2024, the Home Office intends to substantially reduce processing times, simplify the application process by re-using government-held information and modernising sponsorship IT systems.

Improvements for customers

Service standards will be reviewed and improved by by Spring 2022. Research will be undertaken to ensure that SMEs are not deterred from accessing sponsorship arrangements. Sponsor licence renewal patterns will also be reformed, perhaps removing the requirement to renew every four years, and the system will generally be simplified.

IT transformation

All customers will benefit from the launch of a modernised sponsorship IT system which is set to be rolled out on a limited, phased basis from mid-2022 to early 2023.

The first service, ‘Sponsor a Visa’ will be available from mid-2011 and will allow the worker to access a partly pre-populated visa application form once the details of their role have been approved.

The second service, ‘Manage a Licence’ will launch by the end of 2022. This will be an improved sponsor management system for post-licence activities, including better functionality for notifying sponsor changes, a dashboard of sponsored migrants and in-built status and further action prompts.

The third service, ‘Become a Sponsor’ is scheduled for implementation by early 2023. This will incorporate automated data validation checks into the sponsor licence application process, reducing evidence requirements and caseworking times, at the same time as minimising the potential for abuse.

Compliance

The Home Office continues to emphasise the importance of compliance. Compliance visits will still be a feature of the new arrangements, and the Home Office will still have the power to impose sanctions in the case of breaches, such as conditions or limits on recruitment, managed action plans, or sponsor licence suspension and revocation.

Global Business Mobility Route

The Home Office proposes to launch new Global Business Mobility route from Spring 2022, following a review of the Intra-Company and Representative of Overseas Business routes. The sponsorship improvements planned in the roadmap will be applied to this route.

If you have any queries about the roadmap or would like to be kept updated on its progress, please contact a member of our Immigration Team.

 

Related Item(s): Immigration & Global Mobility

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

In yet another last-minute climb-down, the Home Office has announced that adjusted right to work checks will remain in place until at least 5 April 2022. The announcement also suggests that in the interim, the Home Office will work to put a long-term, post-pandemic solution in place.

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The announcement has been made on 26 August 2021, just days before the adjusted checks were due to be ended on 31 August 2021. It offers employers much more certainty that they will not be facing yet another logistical headache over the coming months.

Employers are already able to conduct fully compliant online right to work checks for existing or prospective employees using the Home Office’s online right to work check service. However, the online system is not currently available for people who do not need immigration permission to live and work in the UK, such as British and Irish citizens. The Home Office is therefore planning to implement a further digital solution to cover all individuals whose right to work needs checking.

The Home Office’s acknowledgement that businesses are happy with the adjusted process suggests there may be scope for a further extension if the new digital solution is not available by 5 April 2021.

If you have any queries about this announcement, please contact a member of our Immigration Team.

Related Item(s): Immigration & Global Mobility

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

Significant changes to the COVID-19 requirements for entry to England were made with effect from 19 July 2021.

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On the upside, these included a liberalisation of self-quarantine rules for certain individuals returning to England from an amber list country, including those who have been fully vaccinated in the UK, or, from 2 August 2021, the USA or listed European countries. However, a new ‘amber plus’ list was also implemented, and further countries have been added to the red list. Despite the upbeat messaging from Government, it is still far from plain sailing for international travel.

What are the five current sets of arrangements?

The updated international arrival guidance for England makes separate arrangements for the following:

• Green list arrivals (including green watchlist)

• Fully UK-vaccinated amber list arrivals

• Amber list arrivals who are not fully UK-vaccinated

• Amber plus list arrivals (currently only including France)

• Red list arrivals

The COVID-19 testing and quarantine requirements are determined by the highest risk country the individual has been in during the ten days before their arrival in England. This includes being in a country for a transit stop where new passengers get on, or some passengers get off and re-join the service after being able to mix with other people outside.

Before departure, travellers should:

• Check the rules for the country they are coming from and any countries they are travelling through;

• Book any required post-arrival COVID-19 tests and hotel quarantine packages (children aged four and under are exempt from the COVID-19 testing requirement);

• Book and take an approved pre-departure COVID-19 test (children aged ten and under are exempt from this requirement);

• Complete a passenger locator form; and

• Provide evidence of their vaccination status, if relevant

There are certain occupation-related exemptions from completing one or more of the above steps, which are outlined here. Of note is that since 29 June 2021, the exemption for business directors bringing significant jobs and investment to the UK has been reinstated.

Those travelling within the UK, or from Ireland, the Channel Islands or the Isle of Man do not have to undertake any testing or quarantine if they have not been outside the Common Travel Area in the ten days before arrival in England.

We have summarised the general requirements for arrivals to England below.

Green list arrivals

Those arriving from a country on England’s green list (including the green watch list, which is for countries considered at risk of moving to the amber list) do not have to self-isolate on arrival to England. However, they do still have to undertake an approved COVID-19 test within two days of arrival. Where there is a positive result or the NHS notifies a person to self-isolate because a fellow traveller has tested positive, a ten-day self-isolation period is mandatory.

Amber list

The amber list is not exhaustive – it includes all countries and territories that are not included on the green or red list. Currently it includes over 140 countries.

Amber list arrivals who are fully vaccinated

A person who arrives in England from an amber list country does not need to self-isolate if they are:

• Fully vaccinated under the UK programme, with their vaccination (for a single dose vaccine) or second dose (for a double dose vaccine) having been taken more than 14 days before arrival in England;

• Fully vaccinated under a Federal Drug Administration authorised programme in the USA, and can provide proof of residence in the USA (for arrivals from 4 am BST on 2 August 2021);

• Fully vaccinated under a European Medicines Agency authorised programme in the EU (for arrivals from 4 am BST on 2 August 2021)

• Fully vaccinated under the Swiss vaccination programme (for arrivals from 4 am BST on 2 August 2021)

• Part of a UK-approved vaccine trial; or

• Aged under 18 and resident in the UK or a country with a vaccine programme approved by the UK

An approved COVID-19 test will have to be taken within two days of arrival to England. Where there is a positive result or the NHS notifies a person to self-isolate because a fellow traveller has tested positive, a ten-day self-isolation period is mandatory.

Amber list arrivals who are not fully vaccinated

Where an individual is not fully vaccinated under an approved programme, a ten-day self-isolation period must be undertaken, with COVID-19 tests within two days of arrival and on or after day eight of quarantine. A longer period of self-isolation will be required if the person receives a positive test result.

The option to leave self-isolation early may be possible under the Test to Release scheme. This scheme provides the option to pay for a private COVID-19 test on day five of quarantine provided the result of the test taken upon arrival to England was negative. If the result of the private test also provides a negative result, then the individual may leave quarantine early. Where a test result returns as inconclusive, self-isolation must continue. It is also important to note that the day eight COVID-19 test remains compulsory and must be taken in addition to the private test.

Amber plus list arrivals (arrivals from France)

France is currently the only country on the amber plus list, however other countries may be added in the future. An individual arriving from an amber plus country must follow the standard amber list requirements applicable to those who have not been fully vaccinated under an accepted programme.

Red list arrivals

Entry from a red list country will only be granted where there is an existing residence right or the person is a British or Irish national. Upon successful admittance to England, there is a mandatory ten-day isolation period which must be undertaken in an approved quarantine hotel. Approved COVID-19 tests must also be taken within the first two days of arrival, and on or after the eighth day of quarantine. These rules apply to vaccinated and unvaccinated individuals, and unlike arrivals from the amber list, the Test to Release scheme is not applicable.

What things should employers and employees consider?

Due to the complexity of the rules surrounding arrivals into England and other countries, it is important to consider a wide variety of factors.

Decide whether international travel is necessary or desirable

Employers should make a call on whether business travel is essential, or if the required activities can be carried out effectively another way.

Holidaymakers should ensure they have a clear understanding of the potential inconveniences and costs they may personally be liable for.

All travellers should factor in potential delays during travel due to the additional checks and safety measures that are in place.

They should also consider the inherent health risks of travelling during the pandemic, including that they may need to isolate (or isolate for longer) and/or seek medical attention if they contract COVID-19. This may become expensive very quickly and, in the case of short-term business, training or holiday, may frustrate the purpose of the travel entirely.

It is also possible that an individual may need to extend their stay in the destination country if they are required to isolate, or if travel disruption makes it impossible for them to leave. Consular assistance and options for repatriation may be limited.

In all cases careful attention should be paid to the terms of travel insurance, and a contingency fund may also be prudent.

Monitor changes to the rules

We recommend monitoring the current COVID-19 travel requirements for England, including the red, amber and green lists for any changes in the lead-up to travel and during travel. Guidance for the countries of intended travel should be monitored in the same way. It should not be assumed that the arrangements for travel to other countries or for arrival in Scotland, Wales or Northern Ireland are the same as they are for England.

Understand vaccination recognition

Specific attention should be paid to the changing rules surrounding vaccination programmes. Those who wish to rely on vaccination status should ensure that they have acceptable proof of this. For entry to England this is currently the NHS COVID Pass, and further detailed information should be made available by 2 August 2021 for those vaccinated under the programmes that will become eligible then.

Use the Test to Release scheme where applicable

If an individual who is not fully vaccinated arrives from an amber list country, consider using the Test to Release scheme. For employers, this can help to minimise business disruption if the individual’s work activities must be done in person.

Consider issues relating to pay and leave following return from holiday

Whilst some employees may be required to travel to conduct business, it is a personal issue to go on holiday. Self-isolation periods of staff arising due to foreign travel can prove costly for businesses. Where the reason for travel is a holiday, issues regarding payment during isolation periods are raised. For those occupations where remote working is not possible, our employment team have compiled a table for English employers to refer to. This outlines rights to pay, and suggesting best practices on pay and leave.

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

 

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

Author(s)/Speaker(s): Andrew Osborne, Li Xiang, Jessica Courtney, Kathryn Denyer,

The current Home Office guidance for employers on carrying out right to work checks contains some important clarifications of the Home Office’s policy. These will not affect the vast majority of checks. They will however be relevant in certain circumstances, especially for checks relating to EEA nationals and family members of EEA nationals from 1 July 2021. Employers should also now prepare to return to fully compliant right to work checks from 1 September 2021.

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In this article, ‘EEA national’ refers to EEA and Swiss nationals, other than Irish nationals.

The guidance, Employer right to work checks supporting guidance (previously called ‘An employer’s guide to right to work checks’) was updated on 18 June 2021 ahead of the end of the Brexit post-transition grace period on 30 June 2021. For further details of this update, see our earlier article here.

A further version was published on 2 July 2021. As anticipated, the 2 July 2021 version removes references to the outgoing regime of checks that have been superseded from 1 July 2021. Less obviously, it includes additional requirements in specific scenarios which may be missed by employers.

EEA nationals and their family members whose right to work was checked on or before 30 June 2021

There is no obligation for employers to undertake retrospective right to work checks on EEA nationals or their family members whose right to work had been checked on or before 30 June 2021.

There are however good reasons for encouraging EEA nationals and their family members to disclose whether they have made an application under the EUSS, and, if so, the outcome. Some of these are outlined in our previous article.

Employers should exercise a high level of caution if considering terminating a person’s employment in circumstances where they are unable to provide proof of EU Settlement Scheme (EUSS) status. Before taking any action, employers should consider the Home Office’s concession that allows certain existing employees to continue in employment while they regularise their immigration status by making a late EUSS application to regularise their immigration status.

If in doubt, please contact us for advice.

Individuals with an outstanding EU Settlement Scheme application made on or before 30 June 2021

Such individuals continue to maintain their right to work in the UK until their application and any related appeal is finally determined.

The guidance confirms that from 1 July 2021, EEA citizens with an outstanding online application made under the EUSS will be issued with a digital Certificate of Application (CoA). This will include instructions to the individual on how they can issue a share code to enable an employer to carry out a fully compliant online right to work check, and without having to use the Employer Checking Service (ECS).

If an individual made their EUSS application using a paper application form, they may not yet have received their Certificate of Application by the time a right to work check is needed. Some individuals may have an outstanding application to the EUSS in Jersey or Guernsey. In these cases, the employer should check and retain a copy of any letter or email issued by the Home Office (or Jersey/Guernsey Government) confirming receipt of the application, and then, provided they have the individual’s permission, complete an online form to ask the ECS to provide a Positive Verification Notice (PVN) and obtain a statutory excuse.

Those with an outstanding application to the EUSS in the Isle of Man cannot have this verified by the ECS and must wait until their status is granted before an ECS check can be made.

EEA citizens who have not made an EUSS application by 30 June 2021

Important additional requirements have been added regarding the transitional measure that allows the employer of an EEA national whose employment started by 30 June 2021.

The new guidance confirms the following additional requirements for using the concession:

• Once the employer has advised the individual to apply, the individual must provide the employer, within 28 days, with an EUSS CoA or EUSS email confirming receipt of the application

• The PVN from the ECS must be retained, along with the CoA/EUSS email and right to work check carried out on or before 30 June 2021 to have a statutory excuse for six months from the date of the PVN

Expired passports

Some countries have extended the validity of their passports due to processing issues relating to the COVID-19 pandemic.

The updated guidance confirms that where an individual is required to show their limited immigration permission in a current passport but has a recently expired passport, the ECS should be contacted and requested to issue a PVN. A copy of the expired passport and immigration endorsement should be retained, alongside the PVN, for an employer to have a statutory excuse against liability for a civil penalty.

This is a temporary adjusted measure in place up to 31 August 2021. As it is not yet clear whether this provision may be extended for some or all individuals beyond this date, employers should monitor for changes to the guidance towards the end of August.

Frontier workers

The employment of frontier workers in the UK may be for fixed periods, or may be continuous. It may also take place with the individual being on a UK or overseas payroll, or being a self-employed contractor. The risks and requirements in the area of illegal working may not be straightforward, so specific advice may be needed when dealing with right to work checks for this category of worker.

For checks carried out from 1 July 2021, an employer may obtain a statutory excuse against a civil penalty for illegal working where the worker can produce hard copy or online evidence that they hold a frontier worker permit. Most frontier worker permits are being issued digitally.

Although holding a frontier worker permit is mandatory to enter the UK in this capacity from 1 July 2021, it is not mandatory for a right to work check.

Some frontier workers may not yet have applied for a frontier worker permit or may have an application outstanding at the time a new employer is undertaking a right to work check. In cases where a new employee does not already have a frontier worker permit, the employer can use an online form to ask the ECS to provide a PVN and obtain a statutory excuse.

The most recent guidance confirms that if an employer uses the ECS to make a right to work check for an EEA national frontier worker, they must obtain and retain copies of the individual’s documents evidencing the exercise of rights as a frontier worker on or before 31 December 2020. The ECS may contact the employer to ask for these documents before issuing the PVN.

Each PVN will only provide a statutory excuse for six months from the date of the notice. What this means practically is that it will be a good idea to encourage the worker to obtain a frontier worker permit at the earliest opportunity, and certainly before any travel plans involving entry/re-entry to the UK.

Employers may choose to commence the employment of a frontier worker on or after 1 July 2021 based solely on alternative evidence of their status (and the guidance provides examples), however this will not provide a statutory excuse.

Adjusted right to work checks ending on 31 August 2021

The Home Office is intending to end COVID-19 adjusted right to work checks on 31 August 2021. Employers should therefore consider what measures they intend to take operationally to ensure fully compliant right to work checks can resume from 1 September 2021. We would suggest the following actions:

• Determine an internal policy for conducting right to work checks on the assumption this will be required from 1 September 2021 and ensure all relevant recruitment, HR and any other staff responsible for carrying out right to work checks are made aware of this in good time

• Use online right to work checks wherever possible (noting that the individual must be present at the time of the check, at least via live video link)

• Put adequate resources in place to securely receive, review and return physical documents required for manual right to work checks, and consider conducting manual checks with the individual being present via live video link rather than face-to-face

If you have any ongoing concerns about the end to adjusted right to work checks, please let us know so we can raise these with the Home Office.

If you would like to know more generally about how we can assist with right to work compliance, including our right to work e-learning module and template communications, please contact a member of our Immigration Team.

 

Related Item(s): Immigration & Global Mobility, Resourcing for 2021 and beyond, Recruiting from the EU

Author(s)/Speaker(s): Andrew Osborne, Sam Koppel, Kathryn Denyer,