At the end of April 2021 the Home Office sent a voluntary survey to over 34,000 sponsors of workers to gather information about the time and cost associated with holding their sponsor licence.

Text:

This will be used to assist the Home Office to design an improved sponsorship system for workers and to evaluate it once implemented.

The survey needs to be completed by 23 May 2021. The changes the Home Office is contemplating making to the system are substantial, and are aimed at streamlining and simplifying processes for sponsors, as well as delivering a faster process for bringing a migrant to the UK.

What information is the Home Office seeking via the survey?

This is split into feedback on six areas:

• General details of the sponsor’s size, sector and type of licence held

• Usage and cost of third parties to support the sponsor in its day-to-day activities, eg legal advisers and HR consultants

• Time and resources used to apply for and assign Certificates of Sponsorship, and top areas for improvement

• Time taken to understand sponsor guidance and feedback on using the system

• Time and resource used to gather and submit evidence of significant changes to the sponsor organisation, e.g. due to a merger or takeover, or to add or remove a branch or site

• Infrastructure in place to comply with sponsor record-keeping duties

How will the survey responses be used?

The survey does not require the sponsor to provide any identifying information and will not be used by the Home Office for sponsor compliance activities. It is intended to identify areas most in need of reform, and to provide baseline information against which the reforms of the sponsorship system can be evaluated. The evaluation is due to be completed in 2024 and the responses will be kept until then.

If you have any queries about this initiative or need assistance with completing the survey, please contact a member of our Immigration Team.

 

Related Item(s): Immigration & Global Mobility

Author(s)/Speaker(s): Andrew Osborne, Joanna Hunt, Naomi Hanrahan-Soar, Stephen OFlaherty,

At the end of April 2021 the Home Office sent a voluntary survey to over 34,000 sponsors of workers to gather information about the time and cost associated with holding their sponsor licence.

Text:

This will be used to assist the Home Office to design an improved sponsorship system for workers and to evaluate it once implemented.

The survey needs to be completed by 23 May 2021. The changes the Home Office is contemplating making to the system are substantial, and are aimed at streamlining and simplifying processes for sponsors, as well as delivering a faster process for bringing a migrant to the UK.

What information is the Home Office seeking via the survey?

This is split into feedback on six areas:

• General details of the sponsor’s size, sector and type of licence held

• Usage and cost of third parties to support the sponsor in its day-to-day activities, eg legal advisers and HR consultants

• Time and resources used to apply for and assign Certificates of Sponsorship, and top areas for improvement

• Time taken to understand sponsor guidance and feedback on using the system

• Time and resource used to gather and submit evidence of significant changes to the sponsor organisation, e.g. due to a merger or takeover, or to add or remove a branch or site

• Infrastructure in place to comply with sponsor record-keeping duties

How will the survey responses be used?

The survey does not require the sponsor to provide any identifying information and will not be used by the Home Office for sponsor compliance activities. It is intended to identify areas most in need of reform, and to provide baseline information against which the reforms of the sponsorship system can be evaluated. The evaluation is due to be completed in 2024 and the responses will be kept until then.

If you have any queries about this initiative or need assistance with completing the survey, please contact a member of our Immigration Team.

 

Related Item(s): Immigration & Global Mobility

Author(s)/Speaker(s): Andrew Osborne, Joanna Hunt, Naomi Hanrahan-Soar, Stephen OFlaherty,

The main EU Settlement Scheme (EUSS) deadline is looming on 30 June 2021, however there are other deadlines and considerations that applicants and their employers may not be aware of.

Text:

In this article we highlight a selection of issues that relate to the main deadline, or that will start to have practical implications after 30 June 2021.

Main EU Settlement Scheme deadline on 30 June 2021

This deadline for EUSS applications applies to EEA nationals and eligible family members with residence rights under EU law who were living in the UK by 11 pm GMT on 31 December 2020 and who have not broken their continuous residence period by the time they come to make their application.

This deadline applies both to applications for pre-settled and settled status, and irrespective of whether the person is inside or outside of the UK at the time they make their application. It is worth remembering that those who previously acquired a right of permanent residence in the UK are (with limited exceptions) able to apply under the scheme if, at the time they apply, they have not been absent from the UK for more than five continuous years. It is not necessary for them to re-enter the UK to make the application.

Those who have been absent from the UK during the COVID-19 pandemic should consider whether they are still eligible to apply under the EUSS and ensure they apply on time, even if they currently remain outside the UK. Specific COVID-19 absence policies have also been published by the Home Office in relation to the EU Settlement Scheme, which may benefit some who have been outside the UK for up to 12 months.

A person who has broken the continuity of their residence should check whether they can apply as a joining family member of a person who has been granted pre-settled or settled status under the scheme.

People with an outstanding British citizenship process

A person who has already applied for British citizenship using their permanent residence document or card must ensure they make an EUSS application by 30 June 2021 if British citizenship has not been conferred by this date. This is because making an application for British citizenship does not extend a person’s immigration permission, so an immigration application will be required to maintain lawful immigration status while the citizenship process is outstanding.

It is important to note that where a person must attend a citizenship ceremony as part of the process, citizenship is not conferred until the ceremony has taken place.

People who hold an EEA family permit

The 30 June 2021 deadline for making an application under the EUSS also applies to those who hold an EEA family permit, even if, on the face of the permit, it is due to expire on a later date. This has the potential to cause confusion for applicants and it is likely that there will be some people who miss it.

People who hold an EU Settlement Scheme family permit

EUSS family permit holders must apply under the EUSS within three months of their arrival in the UK, or before their EUSS family permit expires, whichever is earlier.
EUSS family permits are issued for either six months, or for four months from the intended date of arrival for those who are intending to arrive more than three months after the date of decision on the permit.

The same potential confusion issue applies as for EEA family permit holders.

There is also an additional deadline for certain joining spouses and civil partners of Swiss citizens. Where the spouse or civil partnership relationship was formed between 11 pm GMT on 31 December 2020 and 31 December 2025, the individual must ensure that they make their EUSS application while their EUSS family permit is valid, within three months of their arrival, and by 31 December 2025.

People with immigration permission under the Immigration Rules

There are EUSS applicants to whom the main 30 June 2021 deadline would otherwise apply, but who hold limited immigration permission under the Immigration Rules (other than under the EUSS), or outside the Immigration Rules. Where their immigration permission expires on or after 1 July 2021, they must make their EUSS application before expiry.

Although technically an application made by such a person after 30 June 2021 will be considered to be late, the Immigration Rules provide that as long as the application is submitted before the expiry of the immigration permission, this will be deemed to be reasonable grounds for missing the deadline. A person who applies before the expiry of their immigration permission will be covered by a statutory extension of their immigration permission and will still be in the UK lawfully, including having the same immigration conditions, until the EUSS application process (including any related administrative review or appeal) is complete.

People who stop being exempt from immigration control

An EUSS applicant who stops being exempt from immigration control on or after 1 July 2021 will be deemed to have reasonable grounds for missing the 30 June 2021 deadline, provided they apply within 90 days of their exemption stopping. The 90-day period starts on the day the person stops being exempt.

Children born etc in the UK on or after 1 April 2021

Children who are born, adopted or otherwise come within the scope of the definition of ‘child’ for the purposes of the EUSS (which includes certain children born through surrogacy or who are the subject of certain guardianship arrangements) must make their EUSS application within three months of their birth or other relevant event that brings them within the scope of the ‘child’ definition.

It will of course be important also to check whether such children are British by birth, or eligible to apply for British citizenship, either immediately or once their parent receives settled status.

Certain family members of British citizens who have been exercising free movement rights in the EEA

Certain family members of British citizens who have been exercising free movement rights in the EEA by 11 pm GMT on 31 December 2020 and have not already returned must enter the UK, with or after their British citizen family member, and make their EUSS application by 11 pm GMT on 29 March 2022. Any application would also have to be made before the expiry of their EUSS family permit.

The eligibility requirements for these family members are complex, so specific advice may be required.

People with a UK residence card issued under the EEA Regulations

UK residence cards issued under the Immigration (European Economic Area) Regulations 2016 (the EEA Regulations) will no longer be valid after 30 June 2021. This will potentially cause practical issues for visa national family members of EEA nationals, because even if they have been granted permission under the EUSS, they will not have valid physical evidence of their UK immigration permission to show to transport carriers before boarding. Other people with permission under the EUSS may also prefer to have a valid physical document, for example to show a right of return to the UK to foreign governments when making visa applications.

It is possible to apply for an EUSS biometric residence card (BRC) to be issued to address these problems. Doing this is advisable so that a valid card is in place ahead of any travel needs arising.

The Home Office has recently confirmed in an email to stakeholders that due to a surge of applications to issue or replace BRCs, since 23 April 2021 some applicants are being invited to use an Identity Verification (IDV) app as part of the application process rather than attending a UKVCAS service point to provide their biometrics. This may speed up the process for some applicants.

People who have already been granted pre-settled status under the EUSS

They must make a further application under the EUSS before the expiry of their existing pre-settled status. In many cases however, applicants may qualify for settled status well ahead of this expiry, and may apply for this as soon as they become eligible.

What happens if the relevant deadline is missed?

It is possible to make a late application under the EUSS. Where this happens, the applicant must show reasonable grounds for failing to meet the relevant deadline as part of the application.

The initial guidance issued by the Home Office states that for the time-being following 30 June 2021, applicants will be given the benefit of any doubt on this issue, unless this would not be reasonable in the particular circumstances of the case. The Home Office will also engage with applicants to give them a reasonable opportunity to put forward their grounds. The guidance will however be revised at a later date, and it is likely that it will become more restrictive as time goes on.

With the exception of those who still have a valid EUSS family permit, a person who is making a late application will be an overstayer while the application is under consideration.

While in the UK as an overstayer, the person would not be allowed to work or rent private accommodation. They may also be charged for accessing the NHS between the time they become an overstayer and the time they submit their EUSS application.

A baby born in the UK would not be overstayer, but would be subject to NHS charging beyond the first three months after their birth, or until they depart the UK (if earlier). 

Those who are ultimately unsuccessful in their EUSS application will likely need to apply under the Immigration Rules. Although this is an area that may see reform in the future with regard to failed EUSS applicants, the present position is that for those applying in some routes, including work routes, this could involve a re-entry ban of at least 12 months.

If you have any queries on the deadlines or need assistance with an application, please contact a member of our Immigration Team.

 

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

Contributor(s): Andrew Osborne, Kathryn Denyer

The main EU Settlement Scheme (EUSS) deadline is looming on 30 June 2021, however there are other deadlines and considerations that applicants and their employers may not be aware of.

Text:

In this article we highlight a selection of issues that relate to the main deadline, or that will start to have practical implications after 30 June 2021.

Main EU Settlement Scheme deadline on 30 June 2021

This deadline for EUSS applications applies to EEA nationals and eligible family members with residence rights under EU law who were living in the UK by 11 pm GMT on 31 December 2020 and who have not broken their continuous residence period by the time they come to make their application.

This deadline applies both to applications for pre-settled and settled status, and irrespective of whether the person is inside or outside of the UK at the time they make their application. It is worth remembering that those who previously acquired a right of permanent residence in the UK are (with limited exceptions) able to apply under the scheme if, at the time they apply, they have not been absent from the UK for more than five continuous years. It is not necessary for them to re-enter the UK to make the application.

Those who have been absent from the UK during the COVID-19 pandemic should consider whether they are still eligible to apply under the EUSS and ensure they apply on time, even if they currently remain outside the UK. Specific COVID-19 absence policies have also been published by the Home Office in relation to the EU Settlement Scheme, which may benefit some who have been outside the UK for up to 12 months.

A person who has broken the continuity of their residence should check whether they can apply as a joining family member of a person who has been granted pre-settled or settled status under the scheme.

People with an outstanding British citizenship process

A person who has already applied for British citizenship using their permanent residence document or card must ensure they make an EUSS application by 30 June 2021 if British citizenship has not been conferred by this date. This is because making an application for British citizenship does not extend a person’s immigration permission, so an immigration application will be required to maintain lawful immigration status while the citizenship process is outstanding.

It is important to note that where a person must attend a citizenship ceremony as part of the process, citizenship is not conferred until the ceremony has taken place.

People who hold an EEA family permit

The 30 June 2021 deadline for making an application under the EUSS also applies to those who hold an EEA family permit, even if, on the face of the permit, it is due to expire on a later date. This has the potential to cause confusion for applicants and it is likely that there will be some people who miss it.

People who hold an EU Settlement Scheme family permit

EUSS family permit holders must apply under the EUSS within three months of their arrival in the UK, or before their EUSS family permit expires, whichever is earlier.
EUSS family permits are issued for either six months, or for four months from the intended date of arrival for those who are intending to arrive more than three months after the date of decision on the permit.

The same potential confusion issue applies as for EEA family permit holders.

There is also an additional deadline for certain joining spouses and civil partners of Swiss citizens. Where the spouse or civil partnership relationship was formed between 11 pm GMT on 31 December 2020 and 31 December 2025, the individual must ensure that they make their EUSS application while their EUSS family permit is valid, within three months of their arrival, and by 31 December 2025.

People with immigration permission under the Immigration Rules

There are EUSS applicants to whom the main 30 June 2021 deadline would otherwise apply, but who hold limited immigration permission under the Immigration Rules (other than under the EUSS), or outside the Immigration Rules. Where their immigration permission expires on or after 1 July 2021, they must make their EUSS application before expiry.

Although technically an application made by such a person after 30 June 2021 will be considered to be late, the Immigration Rules provide that as long as the application is submitted before the expiry of the immigration permission, this will be deemed to be reasonable grounds for missing the deadline. A person who applies before the expiry of their immigration permission will be covered by a statutory extension of their immigration permission and will still be in the UK lawfully, including having the same immigration conditions, until the EUSS application process (including any related administrative review or appeal) is complete.

People who stop being exempt from immigration control

An EUSS applicant who stops being exempt from immigration control on or after 1 July 2021 will be deemed to have reasonable grounds for missing the 30 June 2021 deadline, provided they apply within 90 days of their exemption stopping. The 90-day period starts on the day the person stops being exempt.

Children born etc in the UK on or after 1 April 2021

Children who are born, adopted or otherwise come within the scope of the definition of ‘child’ for the purposes of the EUSS (which includes certain children born through surrogacy or who are the subject of certain guardianship arrangements) must make their EUSS application within three months of their birth or other relevant event that brings them within the scope of the ‘child’ definition.

It will of course be important also to check whether such children are British by birth, or eligible to apply for British citizenship, either immediately or once their parent receives settled status.

Certain family members of British citizens who have been exercising free movement rights in the EEA

Certain family members of British citizens who have been exercising free movement rights in the EEA by 11 pm GMT on 31 December 2020 and have not already returned must enter the UK, with or after their British citizen family member, and make their EUSS application by 11 pm GMT on 29 March 2022. Any application would also have to be made before the expiry of their EUSS family permit.

The eligibility requirements for these family members are complex, so specific advice may be required.

People with a UK residence card issued under the EEA Regulations

UK residence cards issued under the Immigration (European Economic Area) Regulations 2016 (the EEA Regulations) will no longer be valid after 30 June 2021. This will potentially cause practical issues for visa national family members of EEA nationals, because even if they have been granted permission under the EUSS, they will not have valid physical evidence of their UK immigration permission to show to transport carriers before boarding. Other people with permission under the EUSS may also prefer to have a valid physical document, for example to show a right of return to the UK to foreign governments when making visa applications.

It is possible to apply for an EUSS biometric residence card (BRC) to be issued to address these problems. Doing this is advisable so that a valid card is in place ahead of any travel needs arising.

The Home Office has recently confirmed in an email to stakeholders that due to a surge of applications to issue or replace BRCs, since 23 April 2021 some applicants are being invited to use an Identity Verification (IDV) app as part of the application process rather than attending a UKVCAS service point to provide their biometrics. This may speed up the process for some applicants.

People who have already been granted pre-settled status under the EUSS

They must make a further application under the EUSS before the expiry of their existing pre-settled status. In many cases however, applicants may qualify for settled status well ahead of this expiry, and may apply for this as soon as they become eligible.

What happens if the relevant deadline is missed?

It is possible to make a late application under the EUSS. Where this happens, the applicant must show reasonable grounds for failing to meet the relevant deadline as part of the application.

The initial guidance issued by the Home Office states that for the time-being following 30 June 2021, applicants will be given the benefit of any doubt on this issue, unless this would not be reasonable in the particular circumstances of the case. The Home Office will also engage with applicants to give them a reasonable opportunity to put forward their grounds. The guidance will however be revised at a later date, and it is likely that it will become more restrictive as time goes on.

With the exception of those who still have a valid EUSS family permit, a person who is making a late application will be an overstayer while the application is under consideration.

While in the UK as an overstayer, the person would not be allowed to work or rent private accommodation. They may also be charged for accessing the NHS between the time they become an overstayer and the time they submit their EUSS application.

A baby born in the UK would not be overstayer, but would be subject to NHS charging beyond the first three months after their birth, or until they depart the UK (if earlier). 

Those who are ultimately unsuccessful in their EUSS application will likely need to apply under the Immigration Rules. Although this is an area that may see reform in the future with regard to failed EUSS applicants, the present position is that for those applying in some routes, including work routes, this could involve a re-entry ban of at least 12 months.

If you have any queries on the deadlines or need assistance with an application, please contact a member of our Immigration Team.

 

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

Contributor(s): Andrew Osborne, Kathryn Denyer

The Home Office confirmed on 20 April 2021 that the COVID-19 adjusted right to work check process will only remain in place until 16 May 2021. Although employers will need to undertake fully compliant right to work checks from 17 May 2021, they will not have to carry out retrospective checks where the adjusted process has been used.

Text:

The Home Office guidance can be found here.

No retrospective checks required

The confirmation that retrospective checks will not be required will come as a relief to employers, and recognises the huge administrative task that would have been involved in doing this.

Employer reaction to the announcement

The ending of adjusted right to work process coincides with the planned implementation of step three of the Government’s roadmap for easing lockdown restrictions in England. However, many employees will continue to work either fully or predominantly from home beyond this date.

Many employers have expressed concern that the return to full compliance is premature and unworkable. We, along with other immigration practitioners, will be raising our clients’ concerns with the Home Office with a view to reaching a safer and less disruptive solution.

Tips for minimising adjusted checks and returning to fully compliant right to work checks when required

Whilst the appropriate arrangements will vary from business to business, we would suggest the following general approach for employers to ensure compliance whilst minimising the need for face-to-face right to work checks:

• Determine an internal policy for conducting right to work checks on the assumption this will be required from 17 May 2021 and ensure all relevant recruitment, HR and any other staff responsible for carrying out right to work checks are made aware of this in good time

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

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

If you require assistance with devising or reviewing your right to work check processes in response to adjusted checks ending or would like to raise any particular areas of concern for your business, please contact a member of our Immigration Team.

We will also be discussing right to work issues, in our webinar, ‘Right to work checks from 1 July 2021’. Register for the session here taking place on 24 June 2021.

Related Item(s): Immigration & Global Mobility

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

The Home Office confirmed on 20 April 2021 that the COVID-19 adjusted right to work check process will only remain in place until 16 May 2021. Although employers will need to undertake fully compliant right to work checks from 17 May 2021, they will not have to carry out retrospective checks where the adjusted process has been used.

Text:

The Home Office guidance can be found here.

No retrospective checks required

The confirmation that retrospective checks will not be required will come as a relief to employers, and recognises the huge administrative task that would have been involved in doing this.

Practical tips for returning to fully compliant right to work checks

The ending of adjusted right to work process coincides with the planned implementation of step three of the Government’s roadmap for easing lockdown restrictions in England. However, many employees will continue to work either fully or predominantly from home beyond this date.

Whilst the appropriate arrangements will vary from business to business, we would suggest the following general approach for employers to ensure compliance whilst minimising the need for face-to-face right to work checks:

• Determine an internal policy for conducting right to work checks from 17 May 2021 and ensure all relevant recruitment, HR and any other staff responsible for carrying out right to work checks are made aware of this in good time

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

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

If you require assistance with devising or reviewing your right to work check processes in response to adjusted checks ending, please contact a member of our Immigration Team.

We will also be discussing right to work issues, in our webinar, ‘Right to work checks from 1 July 2021’. Register for the session here taking place on 24 June 2021.

Related Item(s): Immigration & Global Mobility

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

The Migration Advisory Committee (MAC) is currently seeking stakeholders’ views on the operation and effectiveness of the Intra-Company Transfer (ICT) immigration route, as well as a potential expansion of the immigration options for overseas businesses setting up a presence in the UK.

Text:

The deadline for submitting responses to the MAC’s call for evidence is 15 June 2021. The MAC is due to report back to the government in October 2021.

Review of ICT routes

The current ICT routes replaced Tier 2 (Intra-Company Transfer) category in December 2021. The main alternative is the Skilled Worker route.

The main ICT route currently enables UK employers to transfer existing senior employees and specialist personnel who have been employed by a group business abroad for at least 12 months. High earners with a salary of £73,900 or higher do not need to meet the 12-month employment requirement.

The Intra-Company Graduate Trainee route is available to transfer up to 20 graduate trainees to the UK per financial year as part of structured graduate training programme. Graduate Trainees must have been employed by a group business abroad for at least three months.

The salary thresholds and skill requirements for the ICT route are higher than those of the Skilled Worker route, and currently the advantages to using it are limited to certain situations outlined in our earlier article.

The MAC has been asked to advise on the following:

• Salary thresholds for entry to the ICT route;

• What elements beyond base salary should contribute towards meeting the salary requirement;

• Whether different arrangements should apply to high earners, as they do now;

• The skills threshold for this route; and

• The conditions of this route, particularly those that differ from the Skilled Worker route.

Expansion of immigration options for overseas businesses setting up in the UK

The MAC is also gathering evidence on an expansion of the government’s mobility offering that would allow overseas businesses to send a small team to the UK to set up a branch, subsidiary company or office in the UK. Currently employers are only permitted to send one person under the Representative of Overseas Business route. The government is also seeking to expand its mobility offering to include a route that would permit overseas businesses to send a team to the UK in connection to a high-value contract for the provision of products or services.

The MAC is considering:

• Criteria for the eligibility of workers: such as skill and salary threshold; and

• Criteria for eligible organisations: such as size of company, value of contract, or potential job creation.

Evidence requested from stakeholders

The MAC would like to receive evidence on:

• Employers’ reasons for using (or not using) the ICT route in the past five years

• Perceptions about the ease of use of the current ICT routes

• Perceptions about the current salary thresholds for the ICT routes

• Whether and what allowances should be counted to meet salary thresholds on the ICT routes

• What skill threshold should apply to the ICT routes

• Whether there should be reforms to the arrangements for ICT migrants to work for third party clients

• Whether there should be reforms to the length of time that an applicant must have worked for the business abroad (and related exemptions)

• Whether there should be reforms to the maximum amount of time a person can stay in the UK under the ICT route

• What differences there should be for graduate trainees in comparison to the main ICT route

• Whether the absence of an English language requirement for the ICT routes should be retained

• What alternatives businesses would pursue if the ICT routes were not available

• Whether the introduction of the Skilled Worker route makes the ICT route more or less attractive than previously

• What the consequences might be of allowing businesses setting up in the UK to send a small team to do this, rather than only one individual

• Any experience employers have of sending a small team to set up a business in any country

• Perceptions on allowing workers from an overseas business with no UK presence to be seconded to the UK to work on high-value contracts

• Any other changes stakeholders would like to see to the ICT route

If you have any queries about the call for evidence or require assistance in completing a response, please contact our Immigration Team.

 

Related Item(s): Immigration & Global Mobility

Author(s)/Speaker(s): Andrew Osborne, Ella Skinner,

The Migration Advisory Committee (MAC) is currently seeking stakeholders’ views on the operation and effectiveness of the Intra-Company Transfer (ICT) immigration route, as well as a potential expansion of the immigration options for overseas businesses setting up a presence in the UK.

Text:

The deadline for submitting responses to the MAC’s call for evidence is 15 June 2021. The MAC is due to report back to the government in October 2021.

Review of ICT routes

The current ICT routes replaced Tier 2 (Intra-Company Transfer) category in December 2021. The main alternative is the Skilled Worker route.

The main ICT route currently enables UK employers to transfer existing senior employees and specialist personnel who have been employed by a group business abroad for at least 12 months. High earners with a salary of £73,900 or higher do not need to meet the 12-month employment requirement.

The Intra-Company Graduate Trainee route is available to transfer up to 20 graduate trainees to the UK per financial year as part of structured graduate training programme. Graduate Trainees must have been employed by a group business abroad for at least three months.

The salary thresholds and skill requirements for the ICT route are higher than those of the Skilled Worker route, and currently the advantages to using it are limited to certain situations outlined in our earlier article.

The MAC has been asked to advise on the following:

• Salary thresholds for entry to the ICT route;

• What elements beyond base salary should contribute towards meeting the salary requirement;

• Whether different arrangements should apply to high earners, as they do now;

• The skills threshold for this route; and

• The conditions of this route, particularly those that differ from the Skilled Worker route.

Expansion of immigration options for overseas businesses setting up in the UK

The MAC is also gathering evidence on an expansion of the government’s mobility offering that would allow overseas businesses to send a small team to the UK to set up a branch, subsidiary company or office in the UK. Currently employers are only permitted to send one person under the Representative of Overseas Business route. The government is also seeking to expand its mobility offering to include a route that would permit overseas businesses to send a team to the UK in connection to a high-value contract for the provision of products or services.

The MAC is considering:

• Criteria for the eligibility of workers: such as skill and salary threshold; and

• Criteria for eligible organisations: such as size of company, value of contract, or potential job creation.

Evidence requested from stakeholders

The MAC would like to receive evidence on:

• Employers’ reasons for using (or not using) the ICT route in the past five years

• Perceptions about the ease of use of the current ICT routes

• Perceptions about the current salary thresholds for the ICT routes

• Whether and what allowances should be counted to meet salary thresholds on the ICT routes

• What skill threshold should apply to the ICT routes

• Whether there should be reforms to the arrangements for ICT migrants to work for third party clients

• Whether there should be reforms to the length of time that an applicant must have worked for the business abroad (and related exemptions)

• Whether there should be reforms to the maximum amount of time a person can stay in the UK under the ICT route

• What differences there should be for graduate trainees in comparison to the main ICT route

• Whether the absence of an English language requirement for the ICT routes should be retained

• What alternatives businesses would pursue if the ICT routes were not available

• Whether the introduction of the Skilled Worker route makes the ICT route more or less attractive than previously

• What the consequences might be of allowing businesses setting up in the UK to send a small team to do this, rather than only one individual

• Any experience employers have of sending a small team to set up a business in any country

• Perceptions on allowing workers from an overseas business with no UK presence to be seconded to the UK to work on high-value contracts

• Any other changes stakeholders would like to see to the ICT route

If you have any queries about the call for evidence or require assistance in completing a response, please contact our Immigration Team.

 

Related Item(s): Immigration & Global Mobility

Author(s)/Speaker(s): Andrew Osborne, Ella Skinner,

This Inbrief looks at how employers can minimise the risk of legal claims when dismissing employees by reason of redundancy.

Text:

Introduction

This Inbrief looks at how employers can minimise the risk of legal claims when dismissing employees by reason of redundancy. The starting point is making sure that there is a genuine redundancy situation. The crucial thing then is to follow a reasonable procedure, including consulting the affected employees, applying a fair selection process and considering alternative employment. Finally, those dismissed should be given their correct redundancy pay. For information on the procedures to be followed in circumstances where the employer is proposing to make 20 or more employees at one establishment redundant within a period of 90 days, please see our Collective redundancies Inbrief.

The content includes:

1. What is a genuine redundacy?
2. The procedure to follow
3. Who is entitled to a redundancy payment?
4. Immigration issues

Main points

In order to avoid a successful claim for unfair dismissal arising out of a redundancy situation there must be:

• a genuine redundancy situation
• adequate warning and consultation of affected employees
• a fair selection process
• consideration of alternative employment
• a fair procedure An employee must have two years’ service in order to claim unfair dismissal.

What is a genuine redundancy?

There is a rather technical legal definition of redundancy. In essence, a redundancy situation exists where:

• the business as a whole is closing down 
• the particular part of the business in which the employee works is closing down
• the business is closing down in a particular location; or
• the business needs fewer employees with the redundant employee’s skills

The procedure to follow

Consultation

Individual consultation is crucial to a fair redundancy. It should be a means by which information is gathered to assist an employer in making its decision and give employees the opportunity to ask questions and have their say. It is essential that the consultation meetings occur before the final dismissal decisions have been taken. It is also important that during consultation the employer does not assert or imply that the employee will definitely be made redundant.

When arranging a consultation meeting, an employer should give the employee adequate time and information to prepare properly for it. Whilst there is no obligation to allow an employee to be accompanied to consultation meetings, the employer may choose to give the employee that option. 

Issues to be discussed at individual consultation meetings include:

• the reason for the redundancy
• an explanation of the pool for selection
• the selection criteria
• why the individual has been provisionally selected for redundancy according to the criteria (including the scores given)
• whether any factual matters relied upon are accurate
• the timescale
• the financial package
• available vacancies, including details of the nature of the job, the location and terms and conditions
• details of any other support available, e.g. outplacement services
• other suggestions to avoid the employee’s redundancy

Consultation involves a two-way discussion between the employer and the employee, potentially over a number of weeks.

All employees who are at risk of being made redundant must be consulted. Employers should therefore ensure that they do not forget to consult employees who are on maternity leave, on long-term sick leave or on secondment, for example.

The selection pool

Before applying any selection criteria, it is important to identify the correct ‘pool’ of employees to whom the criteria are to be applied. Employers have some flexibility in defining the pool and it will be difficult for an employee to challenge an employer’s choice of pool where the employer has genuinely applied its mind to the issue. Once a provisional view of the appropriate pool has been taken, it is useful to check the following:

• Is there a procedure for identifying the pool which has been agreed by the union or employee representatives? If so, this should normally be followed
• Are there other groups of employees doing similar work to the employees within the provisional pool? If so, it is likely that these employees should also be included in the pool unless there are good reasons not to include them
• Are there other employees working at different sites but doing similar work? Just because a particular site is being closed it does not mean that the pool should necessarily be drawn from the employees working at only that site
• Are there employees whose jobs are interchangeable with any of those in the pool? If so, again, it may be appropriate to include them unless there is a good reason not to

Fair selection criteria

The selection criteria should, as far as possible, be objective. Some care needs to be taken so as not to fall foul of discrimination legislation when applying the criteria. For example, although selection on the basis of attendance is fair on the face of it and the facts are objectively verifiable, employers should check the reasons for absence to ensure that this criterion does not put women or disabled employees at a particular disadvantage. Absences for pregnancy related illnesses, maternity or other family friendly leave as well as absences related to an employee’s disability should therefore be discounted.

Similarly, although ‘Last In First Out’ has been used by employers in the past, it runs the risk of falling foul of the age discrimination legislation as younger employees are more likely to be selected for redundancy.

In practice, most employers use a matrix of criteria which takes account of a range of issues such as:

• relevant skills and knowledge
• relevant experience
• relevant qualifications or training
• disciplinary record
• attendance record 
• communication skills (verbal/written)
• time management/productivity

Criteria should always be appropriate in the circumstances. There should be a business justification for the use of each criterion. Employers should be cautious about using subjective criteria such as ‘attitude’ or ‘team player’.

Even if the selection criteria are reasonable in themselves, they must be applied in a reasonable manner. For example, employers should not concentrate on performance which may have been poor for a short period, whilst ignoring previous sustained good performance.

Suitable alternative employment

An employee who is selected for redundancy should be offered any available vacancy that he/ she could fill, even if it is at a lower salary or at a lower status than the post from which the employee is being made redundant. Some employees would rather be working at a lower salary than be unemployed and an Employment Tribunal may criticise an employer who fails to at least offer an employee that possibility.

If an employee has been given notice of termination by reason of redundancy the employer has a duty to search for suitable alternative employment until the end of the affected employee’s notice period.

Any offer of alternative employment must be made before the end of the employment under the previous contract. It must also take effect either immediately on the ending of the employment under the previous contract or after an interval of not more than four weeks.

If the terms and conditions of the new or renewed contract of employment differ in any way from the corresponding provisions of the previous contract, there is a statutory four week trial period for the employee to decide whether the alternative employment is suitable. If the employee terminates the contract during the statutory trial period, he/she is treated as having been dismissed on the date at which his original contract ended. If the termination is unreasonable, the employee will not be entitled to any redundancy payment. 

Where an employee’s role is made redundant during maternity, adoption or shared parental leave and a return to the old job is not possible, the employer must offer a suitable vacancy if there is one. An employee on maternity, adoption or shared parental leave has priority over other employees who may be candidates for the alternative role. If the employee is not given priority, the dismissal will be automatically unfair. 

A fair procedure

A fair procedure must be followed before individual employees are dismissed. What is fair will depend on the circumstances of each case. A fair procedure should involve all the considerations mentioned above as well as clear communication with the potentially affected employee(s), through one-to-one meetings and in writing. In terms of procedural steps, a fair procedure is likely to involve:

• An initial meeting with the potentially affected employee(s) explaining the reasons for the potential redundancy and the selection process that the employer will follow. This should be confirmed in writing.
• Once the selection criteria have been applied, a letter to the provisionally selected employee(s) setting out the reasons for redundancy and their selection and inviting them to a consultation meeting. The employee(s) will need to be given information about their selection assessment.
• A first individual consultation meeting to discuss the employee’s provisional selection for redundancy, alternatives to redundancy, and proposed redundancy pay terms.
• Discussions in relation to alternative vacancies and any application procedure.

A final individual consultation meeting confirming selection for redundancy and discussing redundancy pay terms. This should be confirmed in writing.

• The employer should allow an employee to appeal against the decision to make them redundant.

As there can be no guarantee as to what will be considered to be fair in a particular case, additional or alternative steps may be necessary depending on the circumstances.

Who is entitled to a redundancy payment?

Only employees with two or more years’ continuous service are entitled to receive a redundancy payment. A redundant employee is entitled to a payment no less than the statutory redundancy payment which is calculated according to age and length of service. The payment is calculated as follows:

• One and a half week’s pay for each year of employment which consists wholly of weeks in which the employee was not below the age of 41
• One week’s pay for each such year of employment which consists wholly of weeks in which the employee was not below the age of 22; and
• Half a week’s pay for each such year of employment not falling within either of the preceding sub-paragraphs

The maximum number of service years to be taken into account is 20 and the maximum amount of a week’s pay is £544 as of 6 April 2021. Applying the above calculation, the maximum redundancy payment is £16,320 as of 6 April 2021.

In practice, many employers choose to make ‘enhanced’ redundancy payments. If such payments are calculated using the statutory redundancy payment formula with permitted uplifts they will not be discriminatory on grounds of age. Other schemes that include age or length of service criteria as factors in calculating a redundancy payment may need to be objectively justified.

An employee who is dismissed by reason of redundancy loses the right to a redundancy payment if he or she unreasonably refuses an offer of suitable employment.

Whilst an offer of alternative employment may be suitable on objective rounds, the reasonableness of the employee’s refusal can be determined on subjective grounds. The personal circumstances of the particular employee should therefore be taken into account when considering the question of whether or not an employee has unreasonably refused a suitable offer of alternative employment. 

Immigration issues

When employers are considering redundancies (or changes such as lay-offs or salary reductions), they should assess whether this has any effect on the immigration status of any of the employees affected. Any of them who holds a Tier 2 visa will have reporting requirements that are likely to be triggered, which may then have knock-on implications for whether they can keep their visa or not. Lewis Silkin’s excellent immigration team can assist you in navigating this part of the process. 

Type: Inbrief

Related Item(s): Employment, Employment

Author(s)/Speaker(s): Steven Lorber,

Attachment: Redundancy Apr 2021

On 16 March 2021 the Home Office made important clarifications to the documentation that sponsors of workers must keep regarding their recruitment activity. The changes are helpful and should not be onerous for sponsors to comply with, however there may be actions that some employers will need to take to ensure compliance.

Text:

The changes are set out in Appendix D to the sponsor guidance, which covers document keeping requirements for sponsors.

Background to the update

Substantial reforms to the immigration arrangements for sponsored workers were brought into effect on 1 December 2020, including the launch of the Skilled Worker route. This route, unlike its predecessor Tier 2 (General), does not include a formal resident labour market testing requirement.

An initial update to Appendix D, which was published on 1 December 2020, stated that sponsors only needed to retain evidence of recruitment activity where the sponsor had told the Home Office that resident labour market testing had been carried out.

This initial wording did not adequately reflect the Home Office’s intention to ensure it was still able to assess whether a vacancy occupied by a sponsored worker was a genuine vacancy, even where formal resident labour market testing was not required. The Home Office therefore revised Appendix D on 18 December 2020, however, in doing so, reintroduced some very prescriptive document keeping requirements that were similar to what had previously been in place for formal resident labour market testing.

Subsequent conversations and correspondence between the Home Office and immigration practitioners confirmed that it was not the Home Office’s intention to reimplement formal resident labour market testing requirements in all but name, and that clarifying guidance would be forthcoming. This was eventually published on 16 March 2021.

Requirements in the new guidance

Part 2 of Appendix D, which covers the evidence that sponsors must keep of recruitment activity has now been split into two sections.

Section A covers the situation where a formal resident labour market test or similar was, or is, required (ie where it was required under the pre-1 December 2020 routes, plus T2 Sportsperson, T5 Religious Worker, T5 Creative and T5 Sporting). It broadly replicates Appendix D as it was before 1 December 2020.

Section B covers the situation where no formal resident labour market testing is required (ie for Skilled Worker and all other sponsored workers from 1 December 2020 aside from T2 Sportsperson, T5 Religious Worker, T5 Creative and T5 Sporting).

Section B confirms that if the job was advertised, evidence of recruitment activity must be retained, including:

• Details of adverts, ie:

• Screenshot, printout or photocopy of any adverts placed (with no minimum number of adverts or prescribed method of advertising, however retaining evidence of all relevant adverts is recommended)

• Information on where the job was advertised, eg website address, and for how long

• A record of the number of people who applied for the job, and the number of people shortlisted for interview or other stages of the recruitment process

• At least one item of evidence or information which shows the process the sponsor used to identify the most suitable candidate (noting that there is no need to retain any personal data for unsuccessful candidates):

• Copy or summary of interview notes for the successful candidate

• List of common interview questions used for all candidates as part of the selection process

• Brief notes on why the successful candidate was selected and why other candidates were rejected

• Information about any scoring or grading process used to identify the successful candidate

• Any other relevant information or evidence

If the job was not advertised, the sponsor must, if asked, be able to explain (and if practicable provide evidence of) how the sponsored worker was identified as being suitable. Non-exhaustive examples given include:

• Milk-round evidence (ie letters from each university as per pre-Skilled Worker requirements)

• The worker was already working legally for the sponsor in another immigration route and their previous performance demonstrated they were suitable

• The worker submitted a speculative application and the sponsor was satisfied (eg through interview, references and/or qualifications) that they had the necessary skills and experience for the job

We would suggest that a short note is included on the sponsored worker’s HR file to provide the relevant explanation as appropriate.

Practical steps to take now

Sponsors should ensure that the updated guidance is complied with, including that it is met for all workers whose immigration applications were made on or after 1 December 2020. The guidance appears to be retrospective, so our view is that sponsors do not have to meet the more onerous requirements that were set out in the 18 December 2020 guidance.

Sponsors should be aware however that the definition of ‘worker’ used in the guidance includes workers under the Intra-company routes, so should be prepared to justify the suitability of intra-company transferees whose applications were made on or after 1 December 2020.

If you have any queries on the updated guidance changes and how to comply, please contact a member of our Immigration Team.

Related Item(s): Immigration & Global Mobility

Author(s)/Speaker(s): Andrew Osborne, Stephen OFlaherty, Naomi Hanrahan-Soar, Joanna Hunt,