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,

Long term hybrid working is a hot topic for all HR teams and we have seen law firms face a number of employment issues as they prepare for a return to the office and the new normal.

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In our series of four short video’s for our Up & Coming Legal HR network, we discussed some of the relevant employment law issues law firms should be aware of such as agile working from location and pay to training and supervision, diversity and wellbeing and immigration.

You can view each of the four videos below.

Agile Working Part 1

 

Agile Working Part 2

 

Diversity issues arising from a flexible workforce

 

Our Up & Coming Legal HR network is a forum for HR professionals working in the legal sector to build relationships with peers and share ideas and knowledge across the network.

If you have any questions in relation to the issues discussed in any of these videos, or if you would like to hear more about our network, please do get in touch with us.

 

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

Author(s)/Speaker(s): Rebecca Rule, Rachel Ward, Sam Koppel,

The post-Brexit grace period came to an end on 1 July 2021. Free movement has been replaced in the UK by the domestic immigration system, including the new Points-Based Immigration System (PBIS).

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As a reminder, EEA/Swiss nationals, excluding Irish nationals (‘EEA nationals’) who want to work in the UK now need some form of visa permission, irrespective of when they arrived in the country. Employers need to ensure they understand how this affects their business, how their recruitment plans and budgets are impacted, and whether their staff have the correct status to allow them to continue working both in the UK and abroad.

We recommend the following key action points for the second half of 2021.

Inform your current EEA/EEA family member employees of the provisions for late applications to the EU Settlement Scheme

Eligible EEA/EEA family member employees who failed to apply to the EU Settlement Scheme by the 30 June 2021 deadline can still submit an application provided there are reasonable grounds for applying late. The list of reasonable grounds is non-exhaustive and the Home Office has confirmed that, for an initial period, most late applications will be accepted for individuals who were not aware of the requirement to apply.

We recommend encouraging any employees who missed the deadline to apply as soon as possible and offering support for those who need it. Employers should also be aware that some individuals who previously lived in the UK but had an extended absence or absences due to the COVID-19 pandemic may not realise that the Home Office issued a more generous COVID-19 absences policy for the EU Settlement Scheme on 10 June 2021, shortly before the main application deadline for the scheme.

Non-EEA family members can still join EEA citizens who were living in the UK by 31 December 2020. With limited exceptions, the relationship must already have existed by that date.

Need more detailed assistance?

• Our article highlights the EU Settlement Scheme deadlines and some of their implications.

• We also look at the updated COVID-19 absences policy here.

We can also assist you with template communications for your employees, and to assist individuals with EU Settlement Scheme and British citizenship applications.

Get in touch with a member of our Immigration Team to discuss putting together the right tools for your business.

Get to grips with the new Points-Based Immigration system

Throughout the first half of 2021, employers will have already started to see how the new visa rules under the Points-Based Immigration System have been affecting business, particularly when recruiting EEA nationals from overseas. With the previous routes for sponsoring workers now being significantly reformed, it will be important for employers to have a good understanding of the system and how to navigate it.

The Frontier Worker Permit remains an option for EEA-national cross-border workers, provided they were travelling to the UK for work on or before 31 December 2020, either on an employed or self-employed basis. These individuals will not be required to apply for a visa under the Points-Based Immigration System. However, from 01 July 2021 onwards, it will no longer be sufficient for them to show evidence of previous work in the UK to be permitted entry in a work capacity. Instead, such cross-border workers must ensure, as a minimum, that they have applied for their Frontier Worker Permit before next travelling to the UK.

The Temporary Worker – International Agreement Worker visa (T5) provides a short-term visa solution for workers entering the UK to provide a service under a contractual agreement covered by international law. Employers operating in sectors that relied on the EEA-national labour market prior to the end of the post-Brexit grace period, such as the manufacturing and energy industries, should consider applying for a T5 (International Agreement) sponsor licence now to be able to continue recruiting EEA citizens.

In-country switching from the Intra-Company Transfer (ICT) visa into the Skilled Worker route is now permitted following the end of the cooling-off rule and introduction of more flexible switching provisions. This option will be useful for existing ICT employees required in their roles longer-term and for ICT employees who ultimately want to settle in the UK where this was not previously an option. It is worth remembering that any time accrued on the ICT visa route will not count towards settlement in the UK.

Also on the topic of the ICT visa route, the Migration Advisory Committee (MAC) has been seeking stakeholders’ views on the route’s operation and effectiveness. This includes exploring potential expansion of the immigration options for overseas businesses aiming to set up a UK presence. The MAC is due to report back to the government in October 2021. Find out more in our article here.

Finally, the Home Office has been consulting sponsors on the design of an improved sponsorship system for workers. It is expected that further engagement will take place later in 2021. For information on the Home Office’s initial sponsorship survey, see here.

Need more detailed assistance?

Our Immigration Law Academies are a one-stop-shop for learning about the new system. The course has been specially designed to give HR and in-house professionals a full overview of the business immigration areas, including the Points-Based Immigration System. Our next Academy is being held on 22 and 23 September 2021, register here.

We will be holding a webinar on the T5 (International Agreement) route in October 2021 – keep a look out for the invite or contact us to join our mailing list here.

Our offering also includes bespoke training for businesses who want to train a larger team or would simply prefer to tailor a course to their own specific needs. Please get in touch with one of our Immigration Team members to discuss further or to have a chat about what the rule changes could mean for your business.

Ensure you have an up-to-date sponsor licence if you anticipate recruiting from the EEA and the rest of the world

If you have not used the sponsorship system before, you may find you will now need to use it as employing nationals from the EEA and beyond will require a sponsor licence in some cases. It is particularly important to consider applying for one now that the grace period has ended so that you are ready to use it when you need to recruit, especially if you operate in a sector which relies heavily on EEA nationals. Sponsor licence applications can take up to eight weeks to process so it pays to act in advance.

If you currently have a sponsor licence, you will need to ensure that it is up-to-date and accurately reflects your organisation’s current structure. Where changes have occurred on an existing sponsor licence, you may need to notify the Home Office. You should also ensure your HR processes are in good shape to meet your growing sponsor licence duties in the event of a Home Office audit. For organisations that have an ICT sponsor licence only, applying to add a Skilled Worker licence will be helpful to allow sponsorship under the Skilled Worker route too.

Sponsor employers should also maintain an understanding of the temporary Home Office COVID-19 concessions in place during the pandemic, and how these change over the coming months. Whilst the Home Office has not required remote working during the pandemic to be reported as a formal change of work location for sponsored workers, the concession will be withdrawn and potentially with very little notice. Employers will need to be aware of any relevant reports to submit on the licence, as well as ensure ahead of time that any arrangements with sponsored workers for long-term remote working are in line with sponsor compliance duties

Need more detailed assistance?

Our Immigration Team has a wealth of experience in advising on and assisting with sponsor licence applications and can help you with any queries if you are new to the process.

We will be holding a webinar on Sponsor Licence compliance in September 2021.

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

Consider the implications of the end of free movement and the COVID-19 pandemic on right to work checks and workforce stability

All UK employers have a responsibility to ensure that their employees have the right to work in the UK before they start work and throughout their employment. The end of the grace period on 1 July 2021 has resulted in changes to the UK’s right to work check system. One of the most significant of these changes is that EEA passports/ID cards are no longer acceptable evidence of a right to work in the UK.

The Home Office has confirmed that retrospective checks are not required for EEA nationals and their family members who commenced employment and had a valid right to work check completed by 30 June 2021. However, employers must be mindful of the appropriate steps to take on discovering an existing employee failed to apply for EUSS status before the deadline, despite being entitled to do so. Under the Home Office’s transitional arrangement, which will end on 31 December 2021, clear steps are outlined to guide employees and employers through this process.

In addition, the Home Office’s temporary adjusted right to work check process that was introduced to address the logistical issues created by the COVID-19 pandemic is scheduled to end on 31 August 2021. With many organisations intending to continue remote working arrangements beyond this date, employers will need to think about appropriate changes to internal processes to be able to manage right to work checks in a compliant manner.

• Our webinar and Q&A on Right to Work Checks from 1 July 2021 (held on 24 June 2021) outlines some of the main issues and how to address them.

• Current guidance on right to work checks from 1 July 2021 is covered in our article here.

• The Home Office’s plans for ending adjusted right to work checks are discussed in our article here.

Need more detailed assistance?

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

We can also help to update your internal policies and recruitment documents to ensure they are in line with the new right to work system in place since 1 July 2021.

Understand what EEA and UK nationals are allowed to do as visitors

EEA nationals visiting the UK are now required to do so on the same basis as all other visitors. The allowed activities for visitors have been expanded, however the position is significantly restricted in comparison to free movement. EEA nationals and their employers will need to adjust to the new restrictions and ensure they are complied with.

The end of free movement not only affects EEA nationals who work in the UK. It has implications UK nationals who live in, commute to or may want to work on the continent.

If you have a workforce which spans Europe, it is important to factor in the new rules on visiting and working in Europe. UK nationals may now need a visa to work in Europe, which requires local visa support and additional time and financial input.

At Lewis Silkin we can call upon an extensive network of local immigration lawyers via our Ius Laboris network to ensure you can obtain timely, clear and cost-effective advice and support for your global moves.

Need more detailed assistance?

• See our Brexit Guide for International Employers, which covers business travel, frontier worker rights, employment permission and residence across 25 jurisdictions.

• Listen to our Post-Brexit immigration rules podcast where we discuss changes in immigration rules from both side of the channel.

• See this Ius Laboris webinar on seconding workers to EU member states.

• See our factsheet on Schengen visas.

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

Understand when to use the new Graduate route

The new Graduate route was launched on 1 July 2021, opening up a flexible unsponsored route for eligible international students to stay in the UK after graduation. This is an attractive option for businesses taking on interns or employees on a fixed-term contract where there is no guarantee that the role will lead to a permanent hire. Employers should however be aware that it is only possible to switch into the Graduate route from a Student visa.

Need more detailed assistance?

• The new Graduate route and its implications are discussed in our article here.

We are able to assist individuals with Graduate visa applications. Please get in touch with one of our Immigration Team members to discuss further.

 

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

Author(s)/Speaker(s): Andrew Osborne, Priya Gandhi,

Employers will need to comply with new funding rules for apprenticeships starting from the beginning of August if they want to qualify for funding. We explain the main changes.

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Early this month, the Education and Skills Funding Agency (ESFA) released the new funding rules, which will apply to apprenticeships starting between 1 August 2021 and 31 July 2022. The government is referring to these as “clarification” rules and is seeking feedback before finalising them. We do not expect to see significant changes but will update you as necessary when the final rules are confirmed.

There are separate funding rules for employers (Employer rules), training providers (Training provider rules), and combined employer-providers. The Employer rules form part of the terms and conditions for an employer’s use of its apprenticeship service account or government-employer co-investment. Although the rules are rather technical, it is important for employers to understand them because a failure to comply can affect their ability to claim funding from the apprenticeship levy.

Moreover, those rules which govern aspects of the relationship between an employer and its apprentices may need to be reflected in the apprenticeship agreement. Failure to do so could not only jeopardise funding but also lead to the apprentice having enhanced employment rights. For more information on this, see our Inbrief guide to apprenticeships.

We identify the most significant changes below, focusing mainly on the Employer rules but with some reference to the Training provider rules.

New redundancy policy

New rules around continuation of an apprenticeship following redundancy apply where an apprentice has been made redundant on or after 15 October 2020, replacing previous rules which applied up to that date. The new provisions apply where on the day of dismissal:

• the apprentice was within six months of the final day of completion of the apprenticeship practical period (see below) or has completed at least 75% of the practical period – in this case, the ESFA will fund 100% of the remaining costs of the training; or

• the apprentice has competed less than 75% of the practical period and the remaining training will take six months or more – in this case, the ESFA will fund training costs of up to 12 weeks while the apprentice looks for a new employer.

Under this policy, the apprentice can continue to study and work towards their apprenticeship without being employed under an apprenticeship agreement – and will be funded to do so by the ESFA as set out above.

Both the Employer rules and the Training provider rules reiterate that the training provider must be provided with evidence of there being a compliant apprenticeship agreement in place between the apprentice and the employer, but there is an exception where the redundancy policy applies.

Action point: Employers should ensure they retain paperwork in respect of any redundancies amongst apprentices and be prepared to provide evidence when needed. They should also be prepared to obtain relevant evidence when taking on an apprentice who was made redundant by a previous employer.

Clarification of off-the-job training and the practical period

Off-the-job training is a key aspect of an apprenticeship and this takes place during the so-called “practical period” – that is, the period during which the apprentice undertakes both on-the-job and off-the-job training. The new rules clarify that off-the-job training should only be delivered during the practical period.

The rules now also refer more clearly to the possibility of delivering off-the-job training in different ways – for example, via regular day release (e.g. on a weekly basis); block release (e.g. front-loaded training or regular one-week blocks); and special training days and workshops. One point which seems unclear is that the rules now state that the start date of the practical period should equate to the first day of off-the-job training, and that the end date of the practical period should equate to the last day of off-the-job training. Mock testing, assessments and exams do not count as off-the-job training.

While this may not in itself be an issue, employers should remember that a compliant apprenticeship agreement must specify the start and end of the practical period, which must be a minimum of 12 months. Employers need to ensure that the first and last days of off-the-job training are accurately reflected and are at least 12 months apart. For shorter programmes, for instance when delivery of training is via block release or there is flexibility for the apprentice to choose between day and block release (including the timing of the block release), the dates may not reflect a full 12 months.

Action point: Employers should liaise with training providers to ensure compliance with this rule and check the relevant dates.

Breaks in learning

Amendments to the rules provide that apprentices must be involved in active learning throughout the apprenticeship unless they take a “break in learning”. This is where they require a break for more than four weeks, but plan to return. In addition, the new rules clarify that it is possible for an apprentice to take a break from learning without also taking a break from work (or indeed, the other way around).

Action point: Update any relevant policies as needed.

Clawback of costs from apprentices?

Employers often ask us whether it is possible to include a “clawback” clause in an apprenticeship agreement. This is designed to protect the employer in circumstances where it has incurred costs in relation to an apprenticeship but, for example, the apprentice does not complete the training or leaves the organisation shortly afterwards.

The Employer rules previously included wording that individuals must not be asked to contribute financially to the “costs of training”, and there has always been uncertainty around whether this would include non-funded costs such as travel expenses, books and equipment. Having a clawback clause in a contract, or seeking to enforce it, couldbreach the rules and mean the apprenticeship does not meet the relevant requirements for funding.

This has, however, now been clarified to refer only to “eligible costs of training”. According to the rules, the “eligible costs” are in essence those costs covered by levy funding. “Ineligible costs” means anything else, including items such as the initial assessment, travel costs, wages, PPE and other safety equipment, non-mandatory qualification fees, accommodation costs, and student fees required by professional bodies (even where linked to mandatory qualifications). This means that theoretically a clawback requirement will not necessarily be a breach of the rules, although in practice such clauses can still be difficult to enforce.

Action point: Review any existing clauses or policies covering clawback of costs.

Other changes

• Temporary flexibilities were introduced in relation to the Functional Skills Qualifications (FSQs) allowing apprentices to take their end-point assessment prior to achieving the required FSQ. These flexibilities were introduced in response to the Covid-19 pandemic, which was making FSQ testing more difficult, but they have now come to an end.

• A new incentive programme is now in place for organisations bringing on new apprentices between 1 April 2021 to 30 September 2021 (with a practical period start date of between 1 April 2021 and 30 November 2021). This replaces the previous incentive programme, which has ended.

• There are new requirements for employers to ensure that dialogue and selection of the end-point assessment organisation must take place at least six months before the apprentice reaches the “gateway” for assessment.

• The immigration criteria have been updated to reflect Brexit and other recent changes.

Related Item(s): Employment, Resourcing for 2021 and beyond, Alternative contracting options

Author(s)/Speaker(s): Abi Frederick, Lee Nair, Saffron O’Gorman,