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,

Procedures for right to work checks have now changed due to the Brexit post-transition grace period ending on 30 June 2021.

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Employers will need to understand the new requirements, in particular for checking the right to work of EEA nationals and their family members.

In our recent webinar on 30 June 2021, we provided a rundown of the Home Office’s new prevention of illegal working guidance from 1 July 2021. Our in-depth article reviewing the guidance can be read here. We also discussed:

• How to avoid potential discrimination risks when running recruitment campaigns

• The options for conducting right to work checks, including retrospective checks

• Managing the logistics of manual checks following the end of the COVID-19 adjusted process

• How to minimise illegal working risks

• What to do when illegal working is identified

We have also addressed the wide ranging set of questions from attendees, which you can view below. You can also view the webinar in full.

In these Q&As, unless otherwise indicated, the term ‘EEA national’ means nationals of countries included in the European Economic Area, as well as Swiss nationals. It excludes Irish nationals, who are already considered ‘settled’ in the UK. Irish nationals can, but are not required, to apply under the EU Settlement Scheme (EUSS), and, unlike other EEA nationals and their family members, continue to be able to rely on their Irish passport or passport card for the purposes of right to work checks after 30 June 2021.

1. From 1 July 2021 will an EUSS check by itself be enough for EEA citizens or will we also need their passport/ID card in addition to the EUSS?

If you carry out an online right to work check for an EEA citizen at View a job applicant’s right to work details – GOV.UK (www.gov.uk) using a share code the person has provided to you, you will not need to check their passport or national ID card.

2. If you have completed the Home Office online check (and an individual has a right to work until a certain date this year), do you also require to request a copy of their passport at this time or from 1 July 2021 (if they are joining after this date)? Or is the Home Office confirmation only required?

A compliant online right to work check is sufficient – doing an additional passport check is not required. You should schedule to do a follow-up check before the expiry of the person’s immigration permission.

3. After 1 July 2021, can we accept an expired EEA passport as proof of identity along with their pre/settled status?

A compliant online right to work check is sufficient on its own (checking the person’s passport is not required), however the person should be advised to log into their online account and notify the Home Office of their new passport details once they have been issued with a new passport.

4. If an employee, on their first day of work, presents a form of right to work that requires an ECS positive verification, does this mean they cannot work until the ECS check is returned?

Yes that is correct. To avoid the possibility of having to push a new joiner’s start date back, you can request evidence of right to work at an earlier stage than first day of work, eg at final interview or offer stage. You should request evidence of right to work from all new joiners at the same stage of the process to minimise discrimination risk.

5. We have a former employee we want to rehire that has pre settled status but passport has now expired. They are from Goa. I assume if we obtain positive verification he can work and he is in process of updating his documents?

See answer to question 3.

6. Can we use an ECS check for and then hire someone we have sponsored on skilled worker visa? They have been approved but we are still waiting for their BRP card?

You can use the ECS. You can do an initial (possibly adjusted) manual right to work check using the person’s short-term entry clearance vignette if they have been granted entry clearance. If they have entry clearance you must also verify the date they entered the UK and that this was during the validity of the entry clearance.

7. The online checks don’t show if the status is pre-settled or settled. How can we know when people’s pre-settled status expires? Are we obliged to monitor for the expiry of these, similarly to Skilled Workers or ICT etc?

The Home Office intends to update their systems after 30 June 2021 so that pre-settled status will show an expiry date. To check the expiry of a person’s pre-settled status where the person’s right to work was checked on or before 30 June 2021, you can ask (but not require) them to provide you with the grant email they received from the Home Office and note this for a follow-up check, or alternatively you can request permission to carry out a repeat right to work check after 30 June 2021, when the systems are due to reflect the expiry date for pre-settled status.

You are not obliged to monitor the expiry of pre-settled status for a person whose right to work was checked on or before 30 June 2021, however doing this is prudent to ensure you minimise the risk of disruption to your workforce in the event an employee fails to make a further application before the expiry of their pre-settled status.

To maintain a statutory excuse against liability for a civil penalty, you are obliged to monitor the pre-settled status expiry for any new employee whose right to work is checked on or after 1 July 2021, and ensure a follow-up check is carried out before the expiry.

For any pre-settled status holder, you can also ask (but not require) the person to give you an indication of the date they anticipate becoming eligible for settled status, and note this as a ‘soft’ reminder. The earliest date will be five years from the date they started living in the UK, and could be substantially ahead of the expiry date of the pre-settled status. Doing this is not necessary from a right to work compliance perspective, but may help to remind the person to apply for settled status at the earliest opportunity.

8. When carrying out online checks, I thought that we did not need to check the original passport or BRP, but your slide suggested that we still needed to certify these documents in addition to the online check. Can you clarify this please?

There is no need to check the original passport or BRP if you carry out a compliant online right to work check.

The date and time of online checks are logged on Home Office systems and on the migrant profile generated. You will still however need to have some means of demonstrating the following:

• Who carried out the check (as this person must be an employee of the employer, and the migrant profile page does not show this)

• That the checker is satisfied the person being employed is the person whose image is shown on the migrant profile

The Home Office’s guidance is not prescriptive about how to do this, however one way is to certify the migrant profile page with this information and retain a copy of this in a format that cannot later be altered.

You will also still need to copy and retain other relevant documents, such as proof of change of name, or proof of a Student’s term and vacation times.

We are happy to discuss your systems with you and provide an opinion on their compliance.

9. When you gain the share code and receive the document to check likeness and relevant permission to work – this document doesn’t confirm whether they hold settled or pre settled status. Therefore, how do we know whether to carry out ongoing checks and when?

See answer to question 7.

10. In what situation do you need to do a RTW check on an EEA family member? Is it not sufficient to do it for the employee?

It is only if your employee is the family member of an EEA national (e.g. if they are not an EEA national but have settled or pre-settled status because of being a family member of an EEA national) that you will need to do a right to work check for them. You will not need to do a right to work check on the family members of any employee.

11. For checks on Pre-settled/settled Status, this is digital so will be online. Do they also need to provide us with a copy of their passport?

See answer to question 8.

12. How do we know when they are eligible for settled status (EEA)? in the document from ECS says that ‘you don’t need to do the check again’. How do we know if it is settled or pre-settled status they have? hence when to make another check.

See answer to question 7.

13. 1. What is a reasonable time to wait for a candidate/employee to provide evidence of RTW? 2. Pre-settled status is for 5 years. Do we need to track the end date and ensure that they receive full settled status before the end date of PSS?

1. This will depend on the circumstances. If the person is a prospective employee, you should give them a reasonable opportunity to demonstrate their right to work, however you are not required to keep the job open for them if they fail to do so. We would recommend that employment offers include a clause stating that the offer is conditional on right to work being demonstrated. If the person is an existing employee, to minimise the risks of an unfair dismissal claim (for an employee with at least two years’ service), wrongful dismissal claim (for failure to properly pay notice) or discrimination claim, you should allow enough time to talk to the employee, investigate and come to an informed and well-articulated conclusion about whether to dismiss. See our presentation slides 33 to 35 or contact us for further information.

2. See answer to question 7.

14. My employee asked me: I already have EU pre-settled status for almost 2 years now but it will be 5 years since I came to the UK in September. Do you know if I should do anything now?

Assuming the employee has maintained the continuity of their residence in the UK over the five years up to September 2021, they may apply for settled status as soon as they have reached five years’ residence. They do not have to wait until close to the expiry of their pre-settled status.

15. If an employee has no EUSS status and returns home to the EU for a holiday, can they re-enter the UK?

If the person is returning on or after 1 July 2021, they would need to obtain status under the EUSS before they arrive. Otherwise they could potentially enter the UK as a visitor, or under another category of the Immigration Rules.

16. How can we differentiate on the verification form from the Home Office whether an individual has pre-settled or settled status?

See answer to question 7.

17. I am an Australian citizen with indefinite leave to remain which is stamped in a very old passport. Immigration do not add this to subsequent passports merely hand write – as seen in previous passport. Is this correct or should this be added to all new passports?

This is correct however you do have the option to have your evidence of indefinite leave to remain transferred to a biometric residence permit (BRP). If you need to provide evidence of your right to work to a new employer, you would need to do this for a compliant right to work check to be carried out, as an indefinite leave endorsement in an expired passport is not acceptable for the employer to obtain a statutory excuse against liability for an illegal working civil penalty.

18. We have checked our right to work documents with existing employees (passports). When these come to expire, will we need their right to work checking code, or will a document from list A or B (e.g. EU passport) still suffice? We also have their settled status letters on file, although I appreciate these are not proof of right to work

If you have carried out a right to work check on or before 30 June 2021 for an EEA national using an EEA passport or national ID card, you will not have to do a repeat check at all to maintain a statutory excuse against liability for an illegal working civil penalty. This is because for checks carried out up to 30 June 2021, EEA passports and national ID cards are List A documents which provide an ongoing excuse for the duration of the person’s employment. It is not necessary to carry out a repeat check when the relevant passport or ID card is due to expire.

However, you may choose to ask, but not require, EEA nationals who relied on their EEA passport or national ID card, or family members whose right to work check relied on an EEA family permit or residence card issued by the UK under EU law to provide you with evidence of having applied or having been granted status under the EUSS.

This may give you greater confidence in the stability of your workforce and may assist your employees to monitor the expiry of pre-settled status. It may also assist your employees to make a late application to the EUSS as soon as possible if they need to.

Other than Irish passports/passport cards, EEA passports and national ID cards have been deleted from List A from 1 July 2021. This means that right to work checks carried out on or after this date must be done in accordance with the revised Lists A and B.

Related Item(s): Immigration & Global Mobility

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

The new Graduate route went live on 1 July 2021, opening up a flexible unsponsored route for eligible international students to stay in the UK after graduation. It has some advantages and drawbacks which employers and students should be aware of before deciding whether it is the preferred immigration option in all the circumstances.

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For general information on the Graduate route and one example of when it may be appropriate to apply for it rather than applying under the Skilled Worker category directly after studies, see our previous article here.

We discuss further below some of the considerations that may be relevant in the employment context.

When will a person be eligible to apply under the Graduate route?

The pandemic has prompted the Home Office to temporarily modify the requirement that a Student visa holder must undertake their studies in the UK to qualify for immigration permission under the Graduate route.

Under a COVID-19 concession, a person who has UK immigration permission as a Student (including a Tier 4 student) will be allowed to switch into the Graduate route provided they apply from within the UK and meet the requirements of the route other than physically studying in the UK, and one of the following applies:

• The Student started a course of 12 months or less in 2020 or Spring 2021 via distance learning, makes a successful Student visa application and arrives in the UK by 27 September 2021, or before their visa expires (whichever is earlier)
• The Student started a course of 12 months or less in 2020 or 2021, has previously been physically in the UK on their Student visa and returns to the UK before their Student visa expires
• The Student starts a course of 12 months or less in Autumn 2021 or Spring 2022 and enters the UK on their Student visa by 6 April 2022 – this includes Students sponsored to complete only the final year of their course in the UK, eg Students on an articulated degree programme
• The Student is sponsored for a course lasting more than 12 months and completes distance learning either in the UK or abroad between 24 January 2020 and 27 September 2021, or distance learning abroad between 27 September 2021 and 6 April 2022 – the Student must also enter the UK before the expiry of their Student visa if this is due to expire before 6 April 2022 (otherwise they Student will be required to enter by 6 April 2022)

In all cases the Student is expected to make their Graduate route application before their Student immigration permission expires.

It will be important for employers to be aware of this concession and any extensions to it when considering the immigration options for a new hire, as it may not be immediately obvious that a person who is physically located abroad may be eligible to apply under the Graduate route. If the person is studying or has recently completed a relevant UK qualification, this should flag a potential for eligibility.

When might the Graduate route be the preferred option?

A person is only eligible to apply for the Graduate route from within the UK immediately after holding immigration permission as a Student. They can’t switch into the route from other immigration categories.

Therefore, if the person is offered a job for a fixed term contract that is less than three years (for those who have completed a PhD) or two years (for all other eligible graduates), they may prefer to pursue that option rather than a sponsored work visa of a lesser duration.

The length of the immigration permission may have to be weighed up against possibly foregoing time in an immigration category such as Skilled Worker, which is a route that leads to settlement.

Although time spent in the Graduate route does not directly lead to settlement, the fact that it is unsponsored means that it may be preferred in some circumstances, for example where the person anticipates becoming eligible for settlement under the ten year long residence route during the validity of their Graduate immigration permission.

When might an alternative route be the preferred option?

There are various scenarios in which an eligible person may prefer (or be obliged) to use another route.

For example, the person has been given a permanent job offer, they may prefer to move directly into the Skilled Worker route because this leads directly to settlement, whereas the Graduate route does not.

Another reason may be the desire to be joined by a partner or child who was not included as a dependant on the person’s Student permission. It is not possible for such a dependant to qualify for immigration permission as a dependant of a Graduate.

It is also worth being aware that if the person intends to continue studying a course that would qualify for the grant of Student immigration permission, they should make a further application as a Student. This is because they would be prohibited from studying this kind of course with Graduate immigration permission.

What if a new hire already has immigration permission under the Graduate route?

It is likely that the graduate may wish to move into the Skilled Worker or other route that leads to settlement as soon as possible rather than waiting until their Graduate immigration permission is due to expire.

In order to avoid any potential misunderstandings, employers should think about whether sponsorship is a possibility from the outset.

What other things should employers consider?

Employers should consider having a policy on whether, and in what circumstances, they may be willing to cover some or all of the costs of a Graduate application for a new hire.

They should also consider the overall costs of the various available options, taking into account things such as application fees, immigration health surcharge and immigration skills charge.

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

 

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

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

On 18 June 2021 the Home Office released new guidance for employers on carrying out right to work checks. This has been published ahead of significant changes to right to work checks affecting EEA/Swiss (EEA) nationals and their family members from 1 July 2021.

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The guidance answers the question of what employers should do if they find out an existing employee has failed to apply to the EU Settlement Scheme (EUSS) by 30 June 2021, but is silent on the position for EEA nationals who started work unlawfully in the UK between 1 January 2021 and 30 June 2021.

The guidance, titled ‘Employer right to work checks supporting guidance’, replaces previous guidance titled ‘An employer’s guide to right to work checks’. We have set out below some of the main changes and their implications, as well as some action points for employers.

It is important to be clear that the changes to right to work checks apply only to checks carried out on or after 1 July 2021. Retrospective checks are not required for EEA nationals or their family members whose right to work was checked by 30 June 2021, even if their employment starts after this date.

An employer who has carried out a compliant check will continue to have a statutory excuse against liability for a civil penalty if the employee is later found not to have the right to work in the UK. However, the employer may still have to terminate the person’s employment unless a transitional measure (discussed below) applies.

Changes to manual right to work checks

Amended acceptable document lists are in place for manual right to work checks conducted from 1 July 2021.

List A documents prove an ongoing right to work, with no need for a repeat check. List B documents will require a repeat check, either because the individual has a time limit on their stay in the UK, or because they have an application, administrative review or appeal outstanding with the Home Office.

List A

Changes to List A documents are as follows:

• Removal of EEA passports and ID cards

• Removal of permanent residence documents issued by the Home Office under EU law to EEA nationals

• Removal of permanent residence cards issued by the Home Office under EU law to family members of EEA nationals

• Addition of unexpired documents issued by the Home Office to family members of EEA nationals, indicating the holders can stay in the UK indefinitely – in practice this means a biometric residence cards (BRCs) confirming settled status under the EUSS

• Addition of Irish passports or passport cards

• Addition of documents issued by Jersey, Guernsey or the Isle of Man confirming settled status under their EUSS, when combined with a Positive Verification Notice (PVN) from the Home Office Employer Checking Service (ECS)

List B Group 1

Changes to List B Group 1 documents (which provide a statutory excuse until the expiry of the document) are as follows:

• Removal of residence cards issued by the Home Office under EU law to family members of EEA nationals or individuals with a derivative right of residence

• Removal of EEA family permits (this is not a formal amendment to List B Group 1 but these will cease to be valid from 1 July 2021 so will no longer be an endorsement that shows the holder is allowed to stay in the UK for a limited period and to do the work in question)

• Addition of unexpired documents issued by the Home Office to family members of EEA nationals, indicating the holders can stay in the UK for a limited period – in practice this means biometric residence cards (BRCs) confirming pre-settled status under the EUSS, as well as EUSS family permits

• Addition of documents issued by Jersey, Guernsey or the Isle of Man confirming pre-settled status under their EUSS, when combined with a Positive Verification Notice (PVN) from the Home Office Employer Checking Service (ECS)

• Addition of frontier worker permits – in practice these will be relatively rare as physical documents are only issued if there was a technical reason an electronic permit could not be applied for

List B Group 2

Changes to List B Group 2 documents (which provide a statutory excuse for six months) are as follows:

• Removal of CoAs issued to family members of EEA nationals with an outstanding application made under EU law, when combined with a PVN from the ECS

• Addition of CoAs issued to individuals who have made an EUSS application in the UK, Jersey or Guernsey on or before 30 June 2021, when combined with a PVN from the ECS

The change with the biggest practical impact is that an EEA passport (other than an Irish passport or passport card) or EEA national ID card will no longer be acceptable evidence of right to work.

There is also scope for employers to be confused about whether a BRC has been issued in accordance with EU law (not acceptable) or under the EUSS (acceptable). To minimise the risk of making a mistake, employers can invite, but cannot require, EEA family members to provide them with a share code to do an online right to work check rather than relying on their BRC. The guidance confirms the Home Office intends to phase out BRCs as an acceptable right to work document from early 2022.

Changes to online right to work checks

Rather a clarification than a change, the new guidance confirms that a fully compliant online right to work check can be conducted with the individual being present by live video link (ie they do not have to be present in person). This was not explicitly stated in the previous guidance.

Transitional measure for employees who fail to apply to the EU Settlement Scheme on time

The question of what to do if it comes to light an employee has not applied under the EUSS by 30 June 2021 is one that has been causing employers concern in recent months. This is because there is a criminal offence of knowing, or having reasonable cause to believe, that an employee is working unlawfully. Illegal working is also an offence for the individual.

The guidance is comforting for employers, because it makes it clear that the Home Office is not intending to prosecute employers who have employed an EEA national on or before 30 June 2021 in good faith and with a compliant right to work check.

Until 31 December 2021, a pragmatic transitional measure has been put in place to cover existing employees failing to apply under the EUSS. Employers are instructed by the Home Office to do the following:

• Advise the individual to make a late application to the EUSS within 28 days and provide the employer with a certificate of application (CoA) – if no CoA is received, the employer should commence the termination process

• If the CoA is received, contact the ECS for a PVN – this may also involve providing evidence of the start date of employment, such as a copy of the initial right to work check

• Carry out repeat checks before the expiry of each PVN as relevant, until such time as the EUSS application is decided and the individual can verify their EUSS status using an online right to work check

Perhaps unintentionally, the transitional arrangement only covers EEA nationals with employment commencing on or before 30 June 2021, leaving a gap for those whose right to work check was undertaken by 30 June 2021 but whose employment does not commence until 1 July 2021 or after. It also does not cover family members of EEA nationals. We have raised these issues with the Home Office and hope the measure will be expanded in a future version of the guidance.

It should be noted that the transitional measure does not apply to new employees due to start work on or after 1 July 2021. Where an individual needs to make a late application to the EUSS in that scenario, the Home Office advises employers not to start the employment until EUSS status has been granted and checked.

EEA nationals who have worked unlawfully in the UK from 1 January 2021

Some EEA nationals who entered the UK on or after 1 January 2021 will have worked unlawfully here if they are not eligible to apply under the EUSS. This is because they will (perhaps unknowingly) have entered as a visitor rather than under EU free movement rights, which ended on 31 December 2021.

Given that EEA national passports and national ID cards are still acceptable evidence of right to work up to 30 June 2021, it would not be surprising if some individuals may have been confused about their rights. The problem may not be picked up until some point in the future, for example if the employer chooses to undertake retrospective right to work checks, during examination on a future entry to the UK, or in the course of a sponsor compliance audit or Home Office illegal working or other enforcement operations.

This separate group of individuals are not covered in the guidance at all. The transitional measure will not apply to them as they are not eligible to apply under the EUSS, so employers will have to commence the termination process once the issue has come to light.

It is to be hoped that further guidance Home Office guidance will be forthcoming on how this issue will be dealt with, particularly because if an affected individual attempts to regularise their immigration status, there is a risk of refusal due to working in breach of immigration conditions and/or overstaying (if the person has remained in the UK for more than six months).

Action points for employers

Employers may wish to consider the following suggested action points:

• Update the information provided to employees for right to work checks to be carried out from 1 July 2021, ensuring the amended List A and List B documents are included

• Determine whether to undertake retrospective right to work checks for EEA nationals (aside from Irish nationals) and family members whose right to work check relied on documents issued under EU law – this should take place on or after 1 July 2021 and ideally by 31 December 2021 to make use of the transitional measure if needed

• Promote awareness of the COVID-19 EUSS guidance and events that could break continuity of residence, tying this in with the business’s working from home abroad policy if the business has one

• Continue to encourage the disclosure of EUSS grant (both for pre-settled and settled status), and diarise any pre-settled status expiries for repeat checks

• Consider sending communications to staff highlighting that settled status applications can be made as soon as a person has accrued five years’ continuous residence, or if certain circumstances are relevant, they can apply earlier

• Consider offering to log a reminder for employees with pre-settled status, flagging the earliest date they may qualify for settled status (or advising them to set a reminder for themselves), as well as encouraging employees to disclose grant of settled status

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

 

Related Item(s): Immigration & Global Mobility

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

The increase in homeworking due to the Covid-19 pandemic is causing many Irish employees to ask if they can work from “home” from an overseas country – be that on a temporary basis, or in some cases indefinitely This Inbrief explains the potential legal issues and how to avoid the traps.

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Introduction

Irish employers should consider a variety of issues, including tax, social security, immigration and employment law implications, before agreeing to an employee’s request to work from home when “home” is not in Ireland. We consider each of these areas before explaining what practical steps you can take to minimise the risks.

The content includes:

• Tax and social security implications

• Immigration implications

• Intellectual property implications

• Employment law and data privacy implications

• Regulatory implications

• How to minimise the risks

Tax and social security implications

If an employee is only working overseas temporarily, the Irish employer should continue to deduct income tax under the PAYE system. Matters start to become more complicated where a stay becomes extended, or even indefinite Employers should always bear in mind the figure of 183 days in a country in a 12-month period – this is generally the tipping point for tax residency, often together with employer obligations to operate withholding tax.

It is important to consider whether the employee’s stay in the host country – regardless of duration – creates risks of income tax or social security liability in that country, or even the risk that you (as the employer) are regarded as having created a “permanent establishment” there for corporation tax purposes (by virtue of the employee’s activities in that host country). In order to understand the position, it will be necessary to establish the rules in place in the relevant host country. We briefly outline the issues below.

Income tax may be payable in host country

The starting point is that the host country has primary taxing rights over the employment income that the employee earns while physically working in that country. However, if there is a double tax treaty (DTT) between Ireland and the host country, the employee may be exempt from income tax and the Irish company from corporate tax there if certain conditions are satisfied.

Ireland has a DTT with 74 countries, 73 of which are in effect. In practice, this means that a short stay abroad in many locations is not going to result in the employee becoming liable for income tax in the host country.

Remember, though, that employees who have already spent other periods in the host country in the same 12-month period (e.g. visiting family) may reach the 183-day threshold sooner than you think. Also, the full details of the conditions can differ from DTT to DTT, particularly the period over which the 183-day test must be satisfied

In addition, the employer and/or employee may still have obligations in the host country even if the DTT applies. For example, the Irish employer may need to register with local authorities as an employer and/or report on the income that is being paid to the employee. It is therefore important to understand the local position.

If the employee does become subject to tax in the host country but remains tax resident in Ireland, they will remain subject to income tax in Ireland on their worldwide income but should be able to obtain credit for some or all the tax they pay in the host country. They will, however, need to complete the appropriate tax declarations/returns, which could be a complex process. You will need to decide the extent to which you are willing (or not) to help the employee with this.

Social security position depends on agreements in place

Social security is very often  linked to the place where the work is physically carried out. There may, however, be exceptions to this rule – for instance, a bilateral social security agreement providing special rules between two countries.

Ireland and the UK have negotiated a social security agreement, which contains exemptions for cross-border workers. This means that Irish citizens living in Ireland maintain the right to benefit from social insurance contributions made when working in the UK and to access social insurance payments if living in the UK, and vice versa.

For cross-border employment within the European Economic Area (EEA) and Switzerland, the position is set out in EU Regulations 883/2004 and 987/2009. These provide that a person normally employed in Ireland, who is sent by their employer to another member state, can continue to be subject to the social insurance provisions of Ireland provided that the anticipated duration of that work does not exceed 24 months. Such employees are often referred to as “posted workers”. This means that a posted worker remains covered under the Irish social security scheme and will continue to make Pay Related Social Insurance (PRSI) contributions in Ireland.

If an employee is not a posted worker but they live outside Ireland in another EEA member state (including Switzerland), you should exercise caution. If they work remotely from home for at least 25% of their working time, they may not be subject to the social security regime of Ireland but to that of the state of residence.

Outside the EEA, Switzerland and the UK, the position will depend on whether there is a reciprocal agreement between the host country and Ireland. In countries where there is a reciprocal agreement, it is possible for an employee to remain within the PRSI system in Ireland and not pay local social security contributions for up to five years (depending on the country), if the employee has a valid certificate of coverage.

In other countries, where no agreement exists, and subject to local rules, an employer may need to deduct employee PRSI and pay it for the first 52 weeks of the arrangement. There may also be a liability to pay social security contributions in the host country and, again, local advice should be sought. In any event, as arrangements become extended or even indefinite it will always be important for the employer to keep income tax and social security arrangements under review. A point may be reached at which, either by legal compulsion or in some cases as the result of a positive choice, it is sensible to transition the employee permanently into the host country system.

Risk of creating a permanent establishment

In some situations, there will be a risk that the employee’s activities or presence in the host country will create a permanent establishment for the employer in that country. This would be the case if, for example, the employee has a sales or business development role and is habitually exercising an authority to conclude contracts in the name of the employer while in the host country. Local rules may also provide for a more expansive definition of a permanent establishment.

Careful consideration should be given to this issue. If a permanent establishment is created, the profits attributable to that establishment would be subject to corporate tax in that country. It would also mean that the income tax exemption in the DTT would not apply. While this may be less of a problem if you already have established operations in the host country, it could be a real headache if you do not.

Assuming the working-from-home arrangement is only short term, it would be difficult for the tax authorities to argue that a permanent establishment had been created. The longer the arrangement continues, however, the greater the risk – particularly if the employee routinely negotiates the principal terms of contracts with customers which are simply “rubber-stamped” without amendment by employees working in Ireland.

Immigration implications

If an employee wishes to work from any host country, you will need to consider what restrictions may be in place. For example, if they want to work in the US but do not have
permission to stay there indefinitely they should not undertake any work without permission – even for a limited period and even if the employing entity is not a US entity.

Immigration permission may not be required for short business visits, although this will sometimes depend on the employee’s nationality and the immigration regime of the
host country. Depending on the employee’s activities, it may be possible to characterise their stay as a business visit – for example, if their activities are limited to those typically undertaken during business trips (e.g. meetings, training, attending a conference). However, restricting an employee’s activities in this way is unlikely to be practical for many employees and, in general, the longer an employee stays in the host country, the more difficult tit will be to characterise their stay as a business visit. In most countries, productive work itself is prohibited as a business visitor, but limited exceptions may apply.

Irish citizens have an automatic right to work in the EEA and Switzerland.

Ireland has a unique relationship with the UK. The Common Travel Area (CTA) between Ireland and the UK (including Jersey, Guernsey and the Isle of Man) has existed since 1922. The CTA is not, and never has been, reliant on Ireland’s or the UK’s membership of the EU. It is based on legislation and bilateral agreements between Ireland and the UK. If an Irish or British citizen wants to live or work in a part of the CTA, they are not required to take any action to protect their status or rights associated with the CTA.

In response to Brexit, the governments of Ireland and the UK signed a Memorandum of Understanding, reaffirming their commitment to maintaining the CTA in all circumstances. The Irish legislature also enacted the Withdrawal of the United Kingdom from the European Union (Consequential Provisions) Act 2020. Primarily designed to reduce the possibility of serious disturbance in the Irish economy in the event of Brexit, this includes provisions to maintain the integrity and operation of the CTA and to
ensure that the rights associated with the CTA continue.

Irish citizens and British citizens will therefore continue to have the same reciprocal rights associated with the CTA, including the right to work, study and vote, and to access social insurance payments and health services. Irish and British citizens will be able to continue to travel freely within the CTA without seeking immigration permission from the authorities. The CTA has been unaffected by Brexit negotiations and there has been no change to the Irish or UK approach to immigration and travel that falls within the CTA rules. Consequently, British citizens will not be required to seek immigration permission from the Irish immigration authorities to travel to Ireland and there are no routine immigration controls on journeys within the CTA.

Intellectual property implications

Unless there is agreement to the contrary, under Irish employment law, intellectual property (IP) created by employees in the course of their employment is owned by the employer. The location of an employee should not impact the ownership of IP.

As a safeguard, employers will often include a provision in the employee’s contract of employment which states that all IP rights in any material created in the course of their
employment is owned by the employer. In addition or as an alternative, an employer may require new employees to sign an IP assignment agreement or non-disclosure agreement which contains a similar provision to that which would normally be present in a contract of employment.

The situation can become tricky if there is no agreement in place, the employee is working from abroad and there is a dispute as to whether IP was created in the course of an
employee’s employment. The employer may be able to argue that the dispute should be governed by Irish law, enabling it to rely on the employer-friendly common law position. The employee, or even a third party looking to claim ownership of the IP, may however argue that it should be governed by the jurisdiction of the host country and any applicable legislation.

It all depends on the circumstances, such as the role of the employee, the material they have created and how and when they have developed the IP in issue. For certainty and
protection against problems arising, it is advisable for employers to clearly set out in employment contracts that all IP in any material created during the course of the employee’s employment is owned by the employer, regardless of from where the employee is working.

Confidential information

One aspect of intellectual property that often gets overlooked is confidential information. Wherever an employee is working from, the importance of protecting information important to a company remains (e.g. customer data or trade secrets). In fact, greater practical measures are often needed when an employee is working from somewhere other than their private home or the company’s office

For instance, if the employee is working abroad from a second home, or from a hotel poolside or other public place, they should continuously ensure that their laptop and work are fully password-protected and secured. Employers should consider security measures such as laptop privacy screens, minimising (or totally preventing) working in public locations and requiring loose papers to be kept locked away when not in use or to be shredded when being destroyed. This is important not just for the protection of confidential information but practically. If the employee has their phone/laptop stolen, it will not be as easy for the employer to get replacement items to them if they are working in a jurisdiction where the employer has no office or base.

Employment law and data privacy implications

In addition to the tax, social security and immigration implications explained above, there are various other employment law and data privacy considerations.

Mandatory employment protections may apply

If employees are considered to habitually work abroad, even for short periods, or if it appears that an employee’s contract is more closely connected with that host country, employees can become subject to the jurisdiction of that other country and start to benefit from the applicable local mandatory employment protections. These may include minimum rates of pay, paid annual holidays, rest breaks and – perhaps most importantly in the event of a dispute – rights on termination. What protections, if any, an employee acquires will depend on the country in question as well as the duration of their stay.

If an employee is planning to stay in the host country for an extended period, the employer should consider transferring them onto a local employment contract. This approach will ensure that the employer is complying with any local requirements and that important provisions such as those relating to confidentiality and post -termination restrictions are fit for purpose.

Data protection

If an employee’s role involves processing personal data, this could give rise to data protection issues. The employer needs to be comfortable that it is not breaching any data protection laws or contracts with customers and third parties by transferring the data to the employee.

The General Data Protection Regulation prohibits personal data outside of the EEA unless that territory ensures there is an adequate level of protection. Accordingly, additional technical and organisational measures may need to be implemented to protect the data and keep it secure. This may partly involve, for example, making sure that
any device has the necessary updates, such as operating system updates (e.g. iOS or Android) and software/antivirus updates, or ensuring any locally stored data is adequately backed up in a secure manner.

Local health and safety protections may apply

Employers in Ireland have a duty to ensure, as far as is practicable, employees’ safety, health and welfare at work. This includes providing a safe working environment when they are working from home, even if that is abroad. You should also ensure that the arrangement is compliant with any local health and safety requirements. For example, in the Netherlands, employers must provide employees with the equipment needed to ensure a safe working environment, which in some cases might involve purchasing or contributing to the cost of relevant equipment.

Insured benefits

An employee’s ability to participate in company benefits such as pensions, private healthcare, income protection and life assurance may be adversely impacted by a move abroad. Such policies may stipulate that beneficiaries must be legally resident in Ireland to avail of the insured benefit tor may preclude an employee from spending a defined period of time outside of Ireland. Covid-19 has cast a spotlight on such limitations, which are becoming increasingly prevalent.

Regulatory implications

For regulated organisations, there are additional considerations when deciding whether employees may be permitted to work from home overseas. Regulators may prohibit employees from doing so. If you are regulated, you should therefore check in advance with your regulator whether allowing someone to work from abroad creates any issues.

Eligibility will vary across sectors and may depend on the individual circumstances of each case (e.g. the nature and seniority of the role being performed). By way of example, the Law Society of Ireland has a long-standing position that its practising certificates do not permit practice outside of Ireland and that practising solicitors must have a physical presence in the country. In comparison, the Central Bank of Ireland will need to approve the appointment of a person performing pre-approval controlled functions (PCF) who intends to reside outside of Ireland while carrying out their functions for an Irish-regulated entity.

How to minimise the risks

Undoubtedly, the pandemic has brought about a major culture shift when it comes to the location from which work is done. Employers are increasingly opting to be flexible and seeking to accommodate requests to work from home overseas. Nonetheless, you will also want to minimise the risks as much as possible. Depending on how many requests you expect to receive, you might even consider developing a short policy to ensure that requests are dealt with consistently and fairly and that potential issues are flagged dearly to requesting employees. You are likely to receive more requests of this kind in future, as employees look to take advantage of increased remote- working opportunities by asking if they can work abroad for a short, medium or long-term period on a regular basis.

The key practical steps for minimising the risks are as follows:

• Only accept requests if the employee’s role can be effectively performed remotely and carried out lawfully from the country in question.

• The shorter the period the employee is working abroad, the smaller the risks are likely to be. Consider only approving requests for a short, time-limited duration where the employee’s expected return date is clearly documented.

• Always take expert local advice on any tax, social security, immigration and employment obligations you may have in the host country. The employee may also need their own advice.

• Be aware that the employee’s ability to participate in company benefits such as pensions, private healthcare, income protection and life assurance may be adversely impacted by a move abroad. You should address this upfront with them.

• Much will depend on the identity of the host country and the employee’s nationality.

• Check what data processing the employee will be doing and that this can be carried out lawfully.

• Check relevant insurance policies, such as those covering employees if they have a work-related accident or any company property that is provided to employees (e.g.
  laptops and phones). Determine whether these are adequate or if you need to take out more extensive cover.

• Agree the terms of any overseas working arrangement and record them in writing. Ideally, these should clarify that:

• The employee will be liable for any additional income taxes or employee social security which may be charged because of their decision to work for a period in an overseas location (with the employer being authorised to make additional deductions or seek reimbursements, if necessary, for this purpose).

• The employee will be responsible for any personal tax declarations that may need to be made.

• The employment contract remains subject to Irish law and jurisdiction (subject to a possible review date for longer-term arrangements at which you might consider transitioning them to a local contract).

• The employee is continuing to work solely for the Irish business.

• The employee’s working hours if they are working from a different time zone.

• Any IP created by the employee in the course of their employment will be owned by the employer.

• The employee does not have the authority to enter into contracts with local customers while in the host country and should not hold themselves out as having such authority.

• The parties ensure the employee has the necessary technology and arrangements in place to enable them to work effectively.

• The employee accepts that they are working from home at their own risk and that the employer will not be liable for any personal loss they suffer due to their request being approved.

• The employee must comply with all applicable public health guidance, both in the country to which they travel and Ireland.

In some cases, it might be appropriate to engage the services of a Professional Employer Organisation (PEO) or an Employer of Record (EOR). This is a third-party organisation, akin to an employment business, which takes on the formal responsibility of employing the employee while overseas and accounting for tax, social security and other applicable local filing requirements. Using a PEO or EOR can be a way of minimising or mitigating the risks faced by the employer, and these types of arrangement
are becoming increasingly common.

Employers considering this option should, however, carefully scrutinise the proposed engagement terms to understand exactly what protection is being offered and assess what gaps might still exist in the event of a dispute. For example, an employee might still be able to sue you directly in the event of a breach of employment legislation. Employers will also need to consider whether the arrangement allows them enough control over someone they regard as “their” employee: the absence of such control may make the arrangement less attractive for some organisations.

Related Item(s): Employment, Irish employment law, Remote working overseas, Remote & flexible working

Author(s)/Speaker(s): Linda Hynes, Declan Groarke,

Attachment: Lewis Silkin inbrief – Working from home abroad – considerations for Irish employers (2021)

The Home Office has confirmed to the Immigration Law Practitioners’ Association that adjusted right to work checks will remain in place until at least 31 August 2021. The development comes at the eleventh hour, as full right to work checks were set to resume from 21 June 2021.

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The confirmation also covers adjusted right to rent checks, also extending these to at least 31 August 2021.

The further extension follows on from the Prime Minister’s announcement on 14 June 2021 that step 4 of the COVID-19 lockdown roadmap has been delayed until at least 19 July 2021. The Home Office has also received representations from employers stating they are not planning to have significant occupancy in their offices until September 2021 at the earliest. The Home Office appears to have taken this into account.

Confirmation of the extension of the adjusted check process has been published here. For information on the previous extension to the adjusted check process, see our earlier article here.

We will be discussing current right to work check issues in an upcoming webinar on 24 June 2021. Click here for more information and to book.

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

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

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

The Home Office has significantly expanded the policy to allow continuity of residence in the UK to be preserved in certain circumstances where an EU Settlement Scheme (EUSS) applicant has been absent from the UK due to the COVID-19 pandemic.

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The policy has been published in response to a successful legal challenge by the charity, Here for Good, and operates as a concession outside the Immigration Rules until such time as the EUSS Rules can be formally amended. The policy published on GOV.UK is also supplemented by guidance to Home Office caseworkers titled ‘EU Settlement Scheme: coronavirus (COVID-19) guidance’.

The amended policy makes many more individuals eligible under the EUSS and better recognises the extent of travel and personal disruption brought about by the pandemic. It will be important to raise awareness of it, because many individuals will have previously been advised by the Home Office or immigration advisers that the nature and extent of their absences made them ineligible to apply under the old policy.

It is still the case that affected individuals should apply under the EUSS by 30 June 2021 if they do not already have status under the scheme. However, applications can be approved where there are reasonable grounds for applying late. Due to the late publication of this policy and the existence of a previous, much more narrow policy, it would seem likely that applying at the point a person becomes aware of their eligibility should be acceptable. 

To avoid processing delays and potential refusal, it will be necessary for absences to be carefully analysed to check they fall within the policy, and for the length and reasons for absences to be evidenced as fully as possible.

Details of the policy are set out below.

Single absence of up to 12 months for an important reason

A person’s continuity of residence in the UK will not be broken if they have a single absence of up to 12 months for an ‘important reason’. 

Under the EU Settlement Scheme, non-exhaustive examples of important reasons include pregnancy, childbirth, serious illness, study, vocational training or an overseas work posting.

The policy confirms that in relation to the COVID-19 pandemic, the Home Office will accept the following (non-exhaustive) circumstances as being an important reason:

• Being ill with COVID-19
• Being in quarantine or self-isolation, or shielding in line with local public health guidance 
• Caring for a family member affected by COVID-19
• Being prevented from returning earlier to the UK due to travel disruption caused by the pandemic
• Being advised by the person’s university that their course was moved to remote learning and being advised or permitted to return to the person’s home country to study remotely
• Being advised by the person’s university or employer not to return to the UK and to study or work remotely from their home country
• Being absent from the UK for another reason relating to the pandemic, for example choosing to leave the UK or stay outside the UK due to there being fewer pandemic-related restrictions elsewhere; preferring to work or run a business from home outside the UK; or where the person would have been unemployed in the UK and preferred to rely on support from family or friends abroad

The references to studying or working remotely from a person’s ‘home country’ seem to be unduly restrictive, as do references to universities but not to other education providers. However, the guidance is not exhaustive, so working or studying from another country may be accepted. 

The ability to fall within the policy where a person chose to remain outside the UK (rather than being compelled to) is a significant change that will benefit intending applicants.

Absences not intended to exceed six months, and not in fact exceeding 12 months

Unless relying on a single absence for an important reason, a person’s continuity of residence will normally be broken if they spend more than six months in any 12-month period outside the UK. 

The policy states that where a person intended not to be absent from the UK for more than six months in a 12-month period, but was in fact absent for no more than 12 months due to circumstances relating to the pandemic, the continuity of their residence will not be considered broken.

The (non-exhaustive) circumstances that can be relied upon are the same as for a single absence of up to 12 months for an important reason (see above). 

This provision is a significant liberalisation of the previous policy. It will be helpful to people who were able to come and go from the UK during the pandemic to some extent, but who spent the majority of a 12-month period outside the UK due to pandemic-related circumstances.

Single absence exceeding 12 months for an important reason or reasons

Under the policy, an individual who has a single absence from the UK of more than 12 months for an important reason or reasons will still be eligible to apply under the EU Settlement Scheme if the pandemic prevented them from, or they were advised against, returning to the UK within 12 months and for a period beyond this.

The circumstances the Home Office will except in this scenario are more stringent than the other two above, as an absence due to choice is not considered acceptable. However, again, the examples set out in the policy are not exhaustive, so it is possible that where sufficient justification for remaining outside the UK is supplied, an application may be approved.

In this situation, the period of absence above 12 months will be considered to be a ‘pause’ in the continuous qualifying period required for settlement. As an example, if a person who meets the policy has a single absence of 14 months outside the UK, they would have to wait for five years and two months before applying for settlement under the scheme rather than five years.

Those whose pre-settled status will expire before the point at which they will qualify for settlement are able to make a further application for pre-settled status.

Second period of absence for an important reason

An individual who has already been absent from the UK for a single period of up to 12 months for an important reason and then has a second period of absence exceeding six months in any 12 month period for an important reason will still be eligible to apply under the EUSS if they can show that one of those periods of absence of up to 12 months was due to the pandemic. This includes where the person chose to stay outside the UK because of the pandemic.

One of the periods must be a single absence for an important reason. The other can be a period of absence exceeding six months in a 12-month period, either as a single absence or cumulative absences, because of the pandemic. Continuity of residence will not be considered to have been broken.

If an individual exceeds 12 months’ absence for either of the periods because the pandemic prevented them from returning to the UK, or they were advised against returning to the UK (but not that they merely chose to remain outside the UK), then the amount of time above 12 months will be considered to be a pause in the continuous qualifying period required for settlement.

The first six months of the second period of absence will count towards the continuous qualifying period required for settlement, provided that during the period being counted, the individual was not outside the UK for more than six months in any 12-month period. The continuous qualifying period will then be paused and resume from the point the individual returned to the UK.

Again, those with pre-settled status can apply for pre-settled status again if they will not meet the residence requirement for settlement before their existing status is due to expire.

It is not completely clear how single versus cumulative absences will be treated on this ground, and specific clarification may need to be sought from the Home Office for individuals who wish to rely on more than one period of absence for an important reason.

How does an applicant make use of the policy? 

An applicant who is applying online should upload evidence of the length of any absence relating to the pandemic, and how their ability to return to the UK has been affected by the pandemic. An applicant who is applying on a paper form should supply the evidence in paper format.

Non-exhaustive examples of evidence are set out in the policy here. These are quite generous. Individuals may also be contacted by a caseworker and given a reasonable opportunity to provide additional information or evidence before a decision is made on the application. 

If you have any queries about this policy or require assistance with making an application, please contact a member of our Immigration Team. 

Type: Case Study

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

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

As part of the government’s ‘new plan for immigration’ the Home Office released a strategy statement on 24 May 2021 setting out its plans for legal migration and border control. It provides an overview of what is an ambitious programme of change, spanning both operational and policy transformation.

Text:

The statement outlines some elements of the Home Office’s planned multi-year programme for modernising, simplifying and developing visa routes within the UK immigration system following the end of free movement, as well as achieving greater border security. It covers immediate priorities for 2021/2022 as well as planned changes up to 2025. While many of the policies and initiatives mentioned are not new, the statement does provide some useful information on timelines for implementation.

Priorities in 2021/2022

These include:

• Continuing to operate the EU Settlement Scheme (EUSS) both before and after the main in-country application deadline on 30 June 2021

• Introducing the Graduate route from 1 July 2021

• Replacing T2 Sportsperson and elements of the T5 Creative and Sporting routes with an International Sportsperson route

• Continuing to simplify the drafting of Immigration Rules

• Simplifying questions on application forms and text in decision notices

• Providing expanded options for demonstrating the requirements of a route are met, including a broader range of acceptable evidence and the ability to upload evidence from home

• Making improvements to sponsorship processes (which will be further detailed in a roadmap due to be published in summer 2021) such as:

• Using ID verification apps (ChipChecker service) for applicants rather than requiring them to attend a physical location to enrol their biometric information (facial image)

• Generating an automatic invitation for visa applicants to make their application, including confirming pre-populated information that has already been entered by their sponsor

• Making sponsor licence processes more streamlined and robust by introducing automated checks with HMRC, Companies House and other government bodies to fast-track the approval of some sponsors and users, and to pick up non-compliance with requirements such as salary payment levels

• Introducing a dashboard for sponsors to allow them to manage their sponsored workers and see information about their visa applications

• Giving sponsors a ‘trust rating’ which will determine their sponsor duties and reporting duties

• Establishing a service to support small and micro business sponsors

• Reviewing fees for users of the sponsorship system

• Introducing a ‘Skilled Worker Eligibility checking tool’ to make it easier to identify if a job is eligible for sponsorship

• Launching new and reformed immigration routes including:

• A new unsponsored points-based route focusing on the very highly skilled and academically elite, and including a ‘scale-up’ stream for those coming to the UK to work for a recognised scale-up business

• A new Global Business Mobility route by spring 2022, which will include provisions for intra-company transferees; service suppliers and independent professionals under trade agreements the UK is a party to; individuals or teams of representatives of overseas businesses setting up a branch or subsidiary in the UK (possibly under a sponsored visa, and possibly with numbers related to the size of the investment in the UK); secondees of overseas businesses that have awarded a contract to a UK business to supply the overseas business with goods

• A new Graduate route from 1 July 2021, which cost £700, will be applied for using the ChipChecker service and will result in a digital status only for non-visa nationals – for further details see our previous article

• A single International Sportsperson route (digital for EEA/Swiss nationals) to replace the current Tier 2 and 5 routes, retaining the Sports Governing Body endorsement but tailoring requirements and offering shorter-term and longer-term stays

• Enabling EEA/Swiss nationals to access temporary worker routes (including creative, religious and Government Authorised Exchange workers) using a fully digital application process from September 2021

• Enabling the ChipChecker service to be used for in-country Skilled Worker applications

• Simplifying the family, private life and settlement routes to streamline the application process and introduce more consistent evidence requirements

• Making improvements to the online immigration status service so that individuals covered by it can access and prove their immigration status more easily and in a more supported way

• Increasing the use of system-to-system checks to allow other government departments and public bodies to check immigration status directly with the Home Office

• Ending the use of EEA ID cards from 1 October 2021 (with limited exceptions)

• Implementing new ‘Border Crossing’, or ‘BX’ technology by summer 2021 to enable Border Force officers to have faster access to information at the border including checking EUSS application or grant status and international person of interest data, as well as making this information available via e-gate upgrades during 2021

• Starting work on the planned Electronic Travel Authorisation system that will require all entrants to the UK other than British and Irish nationals to obtain electronic pre-clearance prior to travel

• Seeking to remove physical documents as evidence of immigration status, eg possibly replacing entry clearance vignettes and biometric residence permits with digital status records – this will involve the Home Office enabling transport carriers to access immigration status information prior to allowing passengers to board their services, with initial testing due to start from autumn 2021 for Electronic Visa Waiver holders

Planned changes to 2025

The Home Office’s vision for its programme of change up until 2025 relies heavily on use of technology to process people at the border, to make and assess applications, to prove immigration status and to operate the sponsorship system. Ultimately the Home Office hopes to improve both ease of use and public confidence in the system through delivering a streamlined, modernised, more secure digital service. It is currently seeking input from academics, technology vendors and carriers to do this.

The Electronic Travel Authority system is due to be made available by the end of 2024, and the Home Office is investigating the possibility of using contactless passage through border controls. This is intended to speed up both the process of boarding carrier services and moving through border controls on arrival.

There are also plans to make most identity checks digitally, and for applicants to present themselves once at a visa application centre to enrol their fingerprints where they are required to do so (some applicants who are eligible to use the ChipChecker app will not have to provide fingerprints at all).

Evidence of immigration status is expected to become entirely digital by the end of 2024. The Home Office will follow a phased process to achieve this transition. This will also be extended out to make electronic immigration status services available to those who have been in the UK for many years and who currently only have paper documents to prove their status.

The system will prioritise self-service for applicants, with online tools and guidance being emphasised, but alongside a national Assisted Digital service for those who find using technology difficult. Customer contact will become more digital, through the use of digital customer accounts and communication channels.

Observations on policy changes

In terms of policy advances, the intended expansion of immigration options will be modest, and will continue to focus on those with the greatest potential to bring economic benefit to the UK.

New unsponsored points-based route

The new unsponsored points-based route must necessarily be distinguishable from the Global Talent route, however it will still be intentionally narrow with a view to avoiding the likelihood that participants will end up filling low-skilled roles in the UK economy. The scale-up stream could end up being a form of quasi-sponsorship and it remains to be seen how and why this route may be attractive to scale-ups in comparison to Skilled Worker.

Global Business Mobility route

The Global Business Mobility route covers too many purposes for it to be a truly simplified offering. More likely it will be an umbrella route with various distinct strands. If it includes a points-test, it is likely to be one under which the eligibility criteria are simply assigned a points to make up a fixed overall points threshold rather a true points-test where meeting various combinations of points-scoring criteria will lead to approval.

Family, private life and settlement routes

It is unfortunate that the Home Office has not yet confirmed any intention to review family, private life and settlement route policy in terms of eligibility criteria, so far ignoring the Migration Advisory Committee’s suggestion in its 2020 annual report to review the evidence base for the family reunification minimum income requirement. Instead, it promises only to simplify the routes as part of the ongoing Immigration Rule simplification project.

Youth Mobility Scheme

It is interesting to note that expansion of the Youth Mobility Scheme arrangements to include EEA countries/Switzerland appears to have dropped off the policy agenda. For the time-being, this leaves very limited options for geographically proximate young people who might like to come to the UK as au pairs, seasonal workers, or flexible workers in the retail and hospitality sectors. If not addressed, this increases the risk of non-compliance with visitor immigration conditions, at least from the point at which the travel and social interaction complications of the pandemic become less of a problem.

Observations on operational changes

Using digital technologies for application processing and immigration status verification

The emphasis on harnessing new technology is both exciting and concerning, as it could revolutionise ease for users of the system on the one hand, but could also pose significant practical difficulties if not successfully achieved.

The technology that has been developed to run the EUSS and to deal with processing and public health issues presented by the pandemic provides a good starting point, however they still have quirks that require work-arounds. The Home Office also needs to address a fundamental issue in the digital status system, which does not currently deal well with issues like change of nationality or the issuing of new identity documents. It is currently possible to have more than one active digital immigration status record, which is something that needs to be urgently addressed to avoid confusion and potential inadvertent breach of immigration conditions or overstaying.

Users of the system also need to be provided clear information to help them to evidence their UK immigration status over time, particularly if they wish to settle and naturalise in the UK in due course, or if they are people who are not comfortable with using digital technology.

Use of electronic systems for pre-arrival clearance and border checks

Although this is not emphasised in the statement, the UK is considerably behind other countries in areas such as electronic travel authorisation and availability of departmental records at border controls. It is worrisome that Border Force is not already able to verify whether a person has applied for or been granted status under the EUSS. With the main scheme deadline approaching on 30 June 2021, the ability to do so must be prioritised to minimise the risk that individuals are not unlawfully denied entry to the UK. 

Sponsorship arrangements

The plan to modernise and streamline the operation of the sponsorship system is very welcome as the technology currently being used is in need of replacement, and current arrangements are costly and time-consuming to comply with. Sponsors should familiarise themselves with the sponsorship system roadmap once released and should consider participating in stakeholder engagement opportunities offered by the Home Office to help shape the reformed arrangements.

Self-service model for users

The Home Office’s aspiration for a self-service model may work for some users of the system, however there will still be a need for adequate assistance to be available to those who are not comfortable with digital technology. This will likely need to go well beyond the Assisted Digital service and digital customer contact. The systems should also cater for the fact that sponsors and other users may still prefer to have the assistance of immigration advisers despite the availability of online tools and guidance aimed at making engagement with the system straight-forward.

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

 

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

Author(s)/Speaker(s): Andrew Osborne, Stephen OFlaherty, Sam Koppel, Li Xiang,