With the end of free movement, we understand that there are some significant changes for employers to consider. As of 1 January 2021, Brits visiting and working in the European Economic Area (EEA) will be restricted, with Schengen rules being introduced for visitors and work visas being required otherwise.

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In our recent webinar, we shared an overview of the anticipated immigration system post Brexit and how this is likely to work in practise from the perspective of Belgium, Italy and Switzerland. You can view the webinar in full below. We have also addressed the wide ranging set of questions from attendees, which you can view below or download a pdf version.

Further resources

We also have a useful international Brexit guide which has been produced by our Ius Laboris Brexit taskforce. In the guide we provide: guidance on a ‘hard’ Brexit (with no deal); business travel; employment and residence; frontier workers; permanent residence and securing residence & work status. The international Brexit hub also includes insights and updates on the latest Brexit developments from around the globe.

 

 

 

Question	Answer
1. We have an employee who is a Dutch national, that travels to work in the UK once a month for 4-5 days, please advise whether they will need to a visa post Brexit?	If they have been working in the UK prior to 11 pm on 31 December 2020 (GMT), they may have the option of either settled, pre-settled status or a frontier worker permit. If not, then they will require a work visa to work in the UK going forward, likely the Skilled Worker visa. You could also look at restricting their activities on their trips to only those permitted as a visitor.
2. If a British poster worker relocates pre-31 Dec, but their assignment doesn’t start until 2 Jan, would they still fall under Withdrawal Agreement?	In general, Posted Workers even if their assignment starts before 31 December 2020 are NOT covered by the Withdrawal Agreement.   BELGIUM: Posted Workers assigned to Belgium after 1 January 2020 will in any event require a single permit to work and reside in Belgium. Although not covered by the Withdrawal Agreement, posted workers whose assignment started before 31 December 2020 and who have Belgian residence status (E-card) before 31 December, will according to the Belgian Immigration authorities nonetheless be considered as beneficiaries of the Withdrawal Agreement. ITALY: Starting from January 1st 2021 a UK posted worker may work in Italy only if he complies with immigration requirements set out for non-EU nationals. This regardless of whether he entered the company before 31 December 2021. In this case, the UK worker may be able to apply for a work VISA not subject to quotas.
3. My understanding is that the Schengen visa waiver will only benefit UK nationals for non-working visits. If they are working, they will need a visa – and what work is for these purposes will depend on each country’s rules. Is that right?	Yes, the Schengen visa waiver allows the employee ‘to be’ in the Schengen area (‘stay’). Whether an additional work authorisation is needed to also ‘work’ in the relevant Schengen country must be checked according to the rules of that country. This also includes business trips as in some countries the type of activities that can be performed without additional work authorisation are limited and/or there might also be limits in time.   BELGIUM: An exemption for a work permit applies for ‘meetings in closed circle’ (= meetings with clients, internal strategic discussions, …) provided that they do not exceed 20 days per meeting and 60 days per year in total (same rule applies in Sweden). ITALY: correct – A Schengen visa waiver would cover business visits (i.e. meetings, negotiations etc) though
4. Does the 90 days include personal trips or is it just business trips?	The 90 days include all days in the Schengen area in any rolling 180-days period whether for personal reasons or business (‘stays’). BELGIUM: As above.   ITALY: The limit of 90 days within a period of 180 days also includes trips for personal purposes.
5. What will be the impact/penalty of accidentally overstaying 90 days within 180-day period?	This should be checked in the relevant Schengen country as each Schengen country applies its own penalties. Overstaying, intentionally or unintentional may lead to e.g. a fine, immediate deportation or getting banned from entering the Schengen area for a specific amount of time.   BELGIUM: In case of overstaying, the employee will be considered as illegal in the country and may be deported and get banned from re-entering Belgium for a certain period of time (up to 10 years).   ITALY: The risk is to be expelled from the Italian territory or be subject to an economic sanction given that after 90 days without a visa, UK citizens (like other foreign citizens) will be considered illegal immigrants.
6. We have UK lawyers practising law in Paris. How are other law firms making this work? Thanks	This should be checked according to French law.
7. Could you confirm that the Schengen visa is not made for work but business visit (conference, meetings, etc.)?	The Schengen visa waiver allows the employee ‘to be’ in the Schengen area (‘stay’). Whether an additional work authorisation is needed to also ‘work’ (i.e. be there for work reasons) in the relevant Schengen country must be checked according to the rules of that country. This also includes business trips as in some countries the activities that can be performed without work authorisation are limited and/or there might also be limits in time.   BELGIUM: In principle a work permit is needed for a third-country national to be active on Belgian territory for professional reasons, unless an exemption applies. An exemption for a work permit applies e.g. for conferences without time limit and for ‘meetings in closed circle’ (i.e. meeting with clients, internal strategic discussions etc) provided that the meetings do not exceed 20 days per meeting and 60 days per year in total. There are also some other exemptions, usually very limited in time.   ITALY: I confirm that Schengen visa, as interpreted in Italy, covers only business and commercial purposes such as conferences or meetings and not work. Consequently, an employment visa (within or outside the quotas depending from the activities) is required for work.
8. What about recognition of UK professional qualifications? Will they recognised as status quo – if they were recognised earlier pre 1st Jan 2021? An example could be considering a technical project where a UK national needs to provide some technical services on-site say in Germany and needs to be technically qualified to do that work.	The Withdrawal Agreement foresees that recognition obtained before the end of the transition period in accordance with the Directives listed in the Withdrawal Agreement, will maintain its effects in the relevant Member State.   BELGIUM: Withdrawal agreement applies.   ITALY: At this stage there is no evidence of a possible agreement between the UK and EU on the recognition of professional qualifications. As a consequence, as of the withdrawal date, UK nationals will be third country nationals and European law on recognition of professional qualifications no longer applies to them starting from January 1st 2021. With refence to professionals recognised before January 1st 2021, the withdrawal of the UK does not affect any decisions on the recognition of professional qualifications obtained before the withdrawal date. Here you can find some additional information: https://ec.europa.eu/info/sites/info/files/file_import/professional_qualifications_en.pdf A deeper analysis after Brexit date could be recommended for each type of professional qualifications.
9. We have posted workers, working in the EU however they return to the UK on weekends. They will be back in the UK for Christmas. Can they return in the new year under the Withdrawl Agreement or do they physically need to be in the EU country on the 31st Dec?	Beneficiaries of the Withdrawal Agreement must lawfully reside in the EU before 31 December 2020) and continue to do so thereafter. The fact that they are not physically present in the relevant Member State on 31 December 2020 is not relevant if they are lawfully residing in that Member State and continue to do so after 31 December 2020. However, more importantly, it should be checked in the relevant Member State if the posted employee (even if lawfully residing the Member State before 31 December 2020) will be considered by the Member State as a beneficiary. Posted workers are NOT covered by the Withdrawal Agreement. However, the relevant Member States may decide to nonetheless consider them as beneficiaries, but this should be checked according to the rules of the relevant Member State. If not, the UK national will be considered as a third country national (non-EU) and may need the relevant work and residence permit.   BELGIUM: According to the Belgian Immigration Office they will not make the distinction between UK posted employees and UK employees in service of a Belgian company as long as the employees lawfully reside in Belgium before 31 December 2020. To prove such residency, it is of utmost importance that the employees have their European residence cards (E(+)-card) or have applied for it (with complete file) before 31 December 2020. They will then need to exchange their European cards for a card as beneficiary of the Withdrawal Agreement (M-card) by 31 December 2021.   ITALY: Starting from 1 January 2021, UK workers may work in Italy provided they obtain a work VISA. This regardless of whether they are already in Italy or they need to re-enter the country after Christmas. As of today, there is no indication that exceptions would be made for posted workers.
10. Would this apply to one – two-day meetings / conferences, etc. where British nationals fly over to EU to meet with clients? Or would the Schengen visa be OK?	The Schengen visa waiver allows the employee ‘to be’ in the Schengen area (‘stay’). Whether an additional work authorisation is needed to also ‘work’ (i.e. be there for work reasons) in the relevant Schengen country must be checked according to the rules of that country. This also includes business trips as in some countries the activities that can be performed without work authorisation are limited and/or there might also be limits in time.   BELGIUM: This would ok. No time limited applies for conferences but for ‘meetings in closed circle’ a time limit of maximum 20 days per meetings and 60 days per year in total applies.   Italy: In this case a Schengen visa should be ok and UK citizens are actually exempted from requesting it.
11. We have Brits currently working in Belgium in our Belgium entity. I assume they should be ok for the Van der Elst exemption but is there anything to do in that regard?	If they are employed by the Belgian entity (i.e. employment contract with the Belgian entity) and reside in Belgium before 31 December 2020, this is ok. If they are employed by the UK entity and posted to Belgium, they are not covered by the Withdrawal Agreement. However, the Belgian Immigration Office has taken the view not to make the distinction between posted employees and employees in service of a Belgian company as long as the employees lawfully reside in Belgium before 31 December 2020. To prove such residency, it is of utmost importance that the employees have their European residence cards (E(+)-card) or have applied for it (with complete file) before 31 December 2020. They will then need to exchange their European cards for a card as beneficiary of the Withdrawal Agreement (M-card) by 31 December 2021. Note: for the Van der Elst exemption to apply, the employee should be in service of an employer established in the EEA or Switzerland.
12. With regards to UK artists (models, directors, stylists or musicians) I am assuming from what has been said across the board that these activities would not count toward most general business activities if they are working on set on a shoot or doing a performance?	This should be checked according to the rules of the relevant country where the activities are performed and whether additional authorisation is needed.   BELGIUM: Artists with international fame are exempt from a work permit provided that their stay in Belgium for these activities do not exceed 21 days per quarter. Italy: Depending on the specific facts, it is likely that this kind of activity would be considered work activity so a work VISA would be required. Artists may get a work visa outside quotas, but it is necessary to check depending on the activity to be carried out.
13. Does productive performances in this latter slide include coming into the country to do consultancy work for a Belgian client?	Genuine consultancy work is not covered by the exemption for ‘meetings in closed circle’. ‘Meetings in closed circle’ refer to meetings/discussions with clients, preparatory meetings, fact finding, etc.
14. Question for Switzerland, can UK nationals have business visits (internal, with clients) without needing a work permit, similar to the situation outlined for Belgium?	SWITZERLAND: Work without a work permit is tolerated for 8 days within a calendar year (8 days per EU company – and this principle should also be applicable to UK companies after Brexit in view the fact that the online notification model should remain applicable).In cases where the internal meetings or client meetings are usually to be considered as gainful employment, a work permit or the online notification will become mandatory. Business visits are for the purpose of sales, contract negotiations, participation at conferences and group internal meetings for strategic discussions or any activities which are not billable, nevertheless, the distinction will always be a grey area.
15. Do independent consultants (Directors of their own limited companies) fall into exceptions for work permits in the different countries within EU or can they come in and provide consulting services to clients in those different countries under the Schengen 90 days?	This should be checked according to the rules of the relevant country where the activities are performed. BELGIUM: As of 1 January 2021, a professional card will be needed to provide consultancy services as an independent worker. An exemption applies for business meetings (maximum 3 months) but allowed activities are limited (meetings, negotiations, conferences, etc).   ITALY: As a general rule, that type of trip does not fall within the Schengen business VISA waiver so the independent consultants would generally need to obtain a work VISA. Specific circumstances would help assessing possible alternatives and risks
16. Are there any implications for UK based individuals doing consulting work for a EU client for social security even if they are not physically in that country for all their time working for that client?Would that be the same for a EU employee working for a EU organisation but living in the UK with their work being done remotely?	As of 1 January 2020, the European social security rules no longer apply. However, transition rules (grandfathering rights) apply for cross-border situations which exist on 31 December 2020 and continue to exist afterwards. For new situations, in the absence of an Agreement between the UK and the EU, it should be checked if a social security treaty between the UK and the relevant member state exists. In the absence thereof, each country will apply its own national rules.   BELGIUM: No implications as of 1 January 2021 (unless a new Agreement would be concluded between the UK and the EU or between the UK and Belgium). Based on national rules, Belgian social security only applies if 1) the employee works on Belgian territory and 2) in service of a Belgian company or a Belgian seat of a foreign company. Question regarding EU employee working remotely in the UK to be assessed according to UK law. Italy: If the individual always works from the UK, the Italian social security authority would not have grounds to claim payment of social security in Italy. If instead the individual spends part of their time to Italy, after 1 January 2021 there may be such a risk.

If you have any queries stemming from the session or you are currently dealing with something, please do contact one of the team members below or your usual Lewis Silkin contact and we will be happy to help.

 

Related Item(s): Immigration & Global Mobility

Author(s)/Speaker(s): Naomi Hanrahan-Soar,

Attachment: Lewis Silkin Q A for Requirements for British nationals working in the EEA from 1 January 2021 Dec

This document sets out the main immigration law issues and Home Office guidance that you need to be aware of so you can consider the implications of the COVID-19 pandemic for your business. The Home Office is making policy announcements and issuing revised guidance regularly and we will keep you updated as this is published.

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(Updated as of 23 December 2020)

This document summarises the latest updates and provides further details on the issues listed below, from logistical considerations to Tier 2 and prevention of illegal working requirements.

Key points from latest guidance

The current document has been updated to reflect the following recent developments:

• Extension of the exceptional assurance process to cover individuals with leave expiring between 1 December 2020 and 31 January 2021

• Confirmation that 90-day short-term entry vignettes cannot be replaced free of charge but must instead be requested via the paid-for vignette replacement process, including submitting biometrics

• Reduction of the self-isolation period for new arrivals to the UK from 14 days to 10 days

• Narrowing the switching concession from 1 January 2021 onwards to require applicants to meet the switching rules of the route they are applying from.

• Removal of the concession permitting work visa applicants to start their new roles before they receive a decision on their visa application from 1 January 2021 onwards.

 Selected issues arising from the COVID-19 pandemic

1. Visa processing issues

2. Passport applications for British citizens abroad

3. Self-quarantine measures for arrivals to the UK

4. ‘Essential travel’ policy for travel outside the UK

5. Arrangements for visa holders with expiry dates to 31 August 2020 

6. Arrangements for those who cannot depart the UK by 31 August 2020 

7. Arrangements for health and social care workers

8. Moving immigration category

9. The cooling-off period

10. Family and private life applicants 

11. Indefinite leave to remain

12. Tier 2 sponsor licence holders

13. Global Talent applicants

14. Citizenship

15. Implications for EEA/Swiss nationals

16. Right to work checks

1. Visa Processing Issues

The issues relating to UK visa processing are complex and rapidly changing. Please contact us for advice on whether to submit or defer making an application on a case-by-case basis, particularly for applicants in the UK or who have departed the UK to make a further application from abroad while seeking to preserve the continuity of their leave for indefinite leave to remain (ILR) purposes.

The Home Office is aware that some applicants may wish to withdraw an outstanding application due to circumstances connected to the pandemic. Its refund policies for withdrawing applications and requesting refunds have been updated accordingly.

Applying from abroad

The Home Office works with two commercial providers, VFS Global, and TLScontact, who operate the VACs abroad. Applicants need to attend a VAC to provide biometrics and upload supporting documents for UK visa applications.VACs have been reopening on a phased basis since 1 June 2020, however it has also been necessary to reclose some locations due to local surges in COVID-19 infection levels.

On 14 August 2020 the Home Office confirmed a new concession to allow applicants making any type of entry clearance application to apply from any VAC worldwide where their VAC is closed and they meet the entry requirements for the country they wish to apply from. This relaxes the usual restrictions on the location where some application types can be submitted. The wording of the concession was updated on 24 August 2020 to clarify that entry clearance applicants must select the country where they intend to submit their biometrics at the start of their application form. Further clarification was added on 12 October 2020, confirming that applications for a visit visa may be submitted to any UK VAC.

If an overseas visa applicant has submitted an entry clearance online for one visa application centre location and then wishes to attend a different one, they must submit a fresh entry clearance application and ask for a fee refund for the original application.

This concession has been extended to 31 March 2021.

The latest advice from VFS Global can be checked here.

Status information on TLScontact VACs can be checked on the address page of the relevant preferred appointment location.

Applicants with appointments already booked at VACs that are closed should be contacted by the commercial partner directly.

Due to border restrictions in some countries, commercial partners are also experiencing problems with being able to print and send UK visa vignettes and to return passports to applicants. Where possible, passports are being returned where VACs have re-opened. Any concerns about this should be sent to the commercial partner, noting that they will be required to comply with any local movement-related restrictions when returning documents.

If an applicant has already been granted their visa but they are unable to travel during the 30-day window of their temporary entry clearance vignette, they may need to obtain a new vignette before they travel.

The Home Office published guidance on 28 April 2020 confirming that a person whose temporary 30-day vignette has expired or is about to expire can request a free replacement visa until the end of 2020.

They must do this by emailing CIH@homeoffice.gov.uk, with REPLACEMENT 30 DAY VISA in the subject line, and including the vignette holder’s name, nationality, date of birth and GWF reference number in the body of the email. If they have already contacted the Coronavirus Immigration Help Centre previously, they should also state this in the email. Individuals should not send follow-up emails unless this is to report a change of circumstances.

Individuals who use this process will be contacted by the relevant VAC, to arrange for a replacement visa with revised validity dates to be placed in their passport.

Alternatively individuals can contact the VAC directly to arrange the replacement if the VAC is open. They should not travel to the VAC with their passport before checking the relevant process on the commercial partner website. There is separate guidance for those who applied using an Immigration New Zealand biometric enrolment location.

The Home Office confirmed on 15 June 2020 that new and replacement vignettes will be valid for 90 days.

Following the expiry of some 90-day vignettes, on 10 December 2020 the Home Office confirmed that the replacement of 90-day vignettes must be done using the process for transferring a visa to a new passport online. There is a £154 fee payable for this, and biometric information must be re-enrolled. In the 10 December 2020 update, the Home Office also advised applicants to engage with the vignette replacement process at a time when they are confident they will be able to travel to the UK. Those with an outstanding vignette replacement request who decide they no longer wish to travel to the UK should contact the relevant VAC to withdraw the request so that their passport can be returned to them.

The Home Office confirmed on 17 December 2020 that it would continue to replace 30-day vignettes free of charge for eligible customers until 31 December 2020.

The requirement for a temporary vignette to be valid at the time of entry to the UK may be waived for non-visas nationals (countries who do not appear on the visa national list), especially where their BRP has already been issued and evidence of this can be provided on entry to the UK. Please contact us for further advice on this option.

There have also been some issues noted with the vignette replacement process, with some applicants receiving a fresh (but shortened) grant of entry clearance. Please contact us for assistance if this has occurred.

Any applicant intending to leave the UK in order to submit a new visa application from abroad should consider the Home Office’s latest published guidance, which confirms that applicants with a visa expiry date after 31 August 2020 may be allowed to submit their visa application within the UK where they would normally be required to submit this from abroad but the application is urgent. See the ‘Moving immigration category’ section of this guide for more information.

Applicants should also ensure they remain up-to-date on any local restrictions which may affect the submission of their application and contact the VAC to reschedule a booked appointment as appropriate. For example, where VACs are open, applicants must take into account and clear any applicable self-isolation period before they attend the appointment. Applicants must also comply with any local requirements relating to travel restrictions. For example, many Australian citizens and permanent residents are not allowed to travel overseas unless they apply for and are granted an exemption. There is also an email process for South Africans to request permission to travel overseas.

In exceptional circumstances, it is possible to request a visa waiver in order to enter the UK as a visitor. Requests can be submitted by email to CIH@homeoffice.gov.uk setting out the urgent, compelling or compassionate reasons. Each request will be considered on case-by-case basis, but this option is unlikely to be available if the relevant VAC is currently open. 

Applying from within the UK

Sopra Steria, the Home Office’s commercial partner that manages in-country biometric appointments, suspended all UKVCAS services from close of business on 27 March 2020. Many service points have now re-opened on a phased basis since 1 June 2020. Information on which centres are open can be found here.

UKVI’s Service and Support Centres (SSCs) are operating on a reduced-capacity basis from 15 June 2020. The Home Office will contact applicants by email or post to make an appointment at one of these centres.

The Home Office is currently advising applicants not to select the priority or super priority processing options as these are not currently available.

Applicants with previously booked UKVCAS appointments should automatically have received a cancellation email, instructing them to log in to their UKVCAS account 24 hours later to view the rescheduled appointment date and time. Rescheduled appointments are guaranteed to take place at the same centre on a future date. Sopra Steria confirms this will have no impact on submitted applications as they will notify the Home Office directly of the delayed appointment.

To better cope with the backlog of biometric enrolments, on 2 July 2020 the Home Office announced that, as a temporary measure, the previously submitted fingerprints of some applicants can be reused. From 24 September 2020, the IDV app stopped being used for applicants other than students. This occurred following a return to ‘business as usual’ processing, however use of the IDV app could be rolled out more widely again if the need arises to do this. Eligible applicants are emailed by UKVCAS and provided with instructions on how to submit a facial image and the supporting documents for their application using an Identity Verification app (IDV app). Applicants who use the IDV app do not need to attend a UKVCAS service point or SSC for their application to be processed.

Reuse of fingerprints has only been possible for people applying in the work, study, family and private life, indefinite leave, citizenship and Windrush routes, as well as those who are applying to have a BRP replaced. The process cannot be used for individuals who last enrolled their biometrics before July 2015 and children under 18 who have not enrolled their biometrics within the last two years. Also, if any applicant within a family group is ineligible to have their fingerprints reused, then the whole family group must enrol their biometrics together in person.

On 5 November 2020 the Home Office confirmed that that UKVCAS service points are essential services and will remain open. Therefore, applicants can continue to attend and book their appointments.

The Post Office has not made any announcement about suspending the processing of biometric enrolments, however applicants should observe social distancing measures while these remain in force. It is advisable to contact the relevant branch before attending.

Lewis Silkin will continue to be an alternative collection location for our clients’ BRPs. We will therefore continue to receive them at our office and provide a notification when this has happened. We will store them securely until such time as non-essential travel is permitted by the Government and documents can be distributed. We anticipate delays in production and receipt of BRPs due to office closures and Government staff shortages so confirming the receipt of a BRP may take considerably longer than the usual 7-10 working day timeframe.

The Home Office confirmed on 28 April 2020 that individuals will not be penalised for being unable to collect their BRP while coronavirus measures are in place.

Disruption to services associated with making UK immigration and nationality applications

With limited exceptions mentioned elsewhere in this guide, applicants must still satisfy the requirements of the relevant immigration category or British nationality law in the usual way. This may mean obtaining assessment of an overseas degree, passing a valid UKVI-approved English language test, passing the Life in the UK test or attending a British citizenship ceremony.

Individuals applying in the UK should still ensure they submit their online application before the expiry of their existing leave in order to maintain lawful immigration status, even where supporting documentation is unavailable due to service closures. The Home Office will ask for outstanding documents/information to be submitted once services have resumed and before the application is decided.

Those who are required to register with the police must still make arrangements to do so.

Although in-country immigration processing has been substantially reduced due to the pandemic, applications are currently proceeding through to decision in most cases.

a) Assessment of overseas degrees

UK NARIC is continuing to conduct qualification assessments of overseas degrees and fast-tracked turnaround is still possible. However, statements are being issued electronically in PDF format and applicants will not receive a hard copy statement from UK NARIC until further notice. The PDF statements issued will be temporary documents designed specifically for the current period of COVID-19 restrictions. Once the restrictions are relaxed, UK NARIC will issue the official printed paper version of the statements by post. The Home Office will be aware of this change in process from UK NARIC and will have means to verify the authenticity of the temporary statements via www.naric.org.uk/verification. The documents required for an assessment to be conducted remain the same. This includes a valid medium of instruction letter from the relevant educational institution where it is not clear from the degree certificate or transcript that the course was taught in English.

b) UKVI-approved English language tests

The British Council, who are approved providers of the IELTS for UKVI and Life Skills tests required for a number of visa categories in the UK and overseas, have temporarily paused tests in many countries in response to Government and health authority guidance. To check if a particular country or test centre is affected, applicants can refer to the COVID-19 guidance on the IELTS website.

Trinity College London, who are approved providers of the GESE and ISE exams in the UK only, have re-started some tests from 8 June 2020. Updates can be viewed on the Trinity College London website.

LanguageCert, who have recently been approved to provide secure English-language tests on behalf of UKVI have started to re-open some of their test centres since 1 June 2020. Details of the current open centres are available on the LanguageCert website.

Pearson, who offer UKVI-approved PTE Academic and PTE Home tests outside the UK only, have some centres open. See the Pearson website for further information.

PSI Services, who offer UKVI-approved Skills for English UKVI outside the UK only, also have some centres open. See the PSI Services website for details.

c) Life in the UK tests

Life in the UK test centres, relevant to applicants for indefinite leave to remain and naturalisation, closed from 21 March until 31 May 2020. Some centres have been re-opening since 1 June 2020 and information on which centres are currently operational can be found on the LIUK website.

d) Police registration certificates

Police registration at the Overseas Visitors Records Office (OVRO) reopened on 7 October 2020 following a period of closure. It is necessary in all cases to book an appointment to attend as walk in applicants are no longer allowed. The appointment must be made within the relevant time frame for complying with police registration requirements, which is within seven days of arrival for a first registration, or within seven days of a change of circumstance.

The service has reopened five days a week instead of four, and under enhanced health and safety arrangements. Customers will be encouraged to wear a face mask when attending.

The Government previously confirmed that action will not be taken against individuals who were unable to attend the OVRO or to book an appointment in order to either register their stay in the UK or update existing certificates while the service was closed due to COVID-19.

Those who live outside the London metropolitan area covered by OVRO should contact their local police force for guidance.

2. Passport applications for British citizens abroad

Applications for British passports can be made online, however applicants who are abroad and need to attend a VAC will only be able to complete their application if the VAC is open.

British citizens who urgently need to travel to the UK without a passport need to contact the British Embassy, High Commission or Consulate in the country where they are located.

3. Self-quarantine measures for arrivals to the UK

Self-quarantine measures for most new arrivals to the UK have been put in place from 8 June 2020 and are now subject to review on a rolling basis. Initially the reviews were intended to be every 28 days, then every 21 days. The shift to rolling-basis amendment means that travellers have less certainty over whether they will be required to self-isolate on arrival in the UK. They should be prepared for this possibility.

Within 48 hours of arriving in the UK, travellers must complete a Public Health Passenger Locator form with their contact details and travel information, so they can be followed up if they or someone they may have been in contact with develops COVID-19. If they have not arranged to stay at a hotel, with friends/family or at their own accommodation, then they will be provided with government-arranged accommodation at their own cost. Information will also be provided on the NHS contact tracing app, with travellers being encouraged to download this.

Following entry, travellers must use personal transport where possible to get to their accommodation and remain there in self-isolation for 10 days. This period was reduced from 14 days on 14 December 2020.

They must not go out during the period of self-isolation, unless it is for urgent assistance, to attend a funeral or due to another compassionate circumstance, to buy food or medicine where they cannot have this brought to them, or there is an emergency. Visitors are not allowed unless this is required for essential support.

Those who refuse to provide their contact details can be fined £100 and may be refused entry if they are not British or a UK resident. A fine of up to £1,000 may also be imposed in England if it is found that the self-quarantine has been breached, eg at a spot check. Enforcement measures in Wales, Scotland and Northern Ireland are published separately on GOV.UK.

Common Travel Area and ‘travel corridor’ exemptions

Some individuals are exempt from the measures, including those who enter the UK from the Common Travel Area (the Republic of Ireland, Isle of Man and the Channel Islands), provided they have been in the area for at least 10 days already.

Since 10 July 2020 (11 July 2020 for Wales), travellers arriving in the UK from listed ‘travel corridor’ countries and territories do not have to self-quarantine provided they have not been to, or had a transit stop in, any non-listed country within the last 14 days. The lists can be amended without notice. Those who intend to travel to England can sign up to receive an alert whenever the travel corridor list for England is updated. Specific advice should be sought for travellers who are intending to spend time in more than one nation of the UK within 14 days of their arrival.

It should be noted that making a transit stop in a country that is not on the relevant travel corridor list will mean that self-quarantine will apply on arrival unless the person is exempt due to the purpose of their travel to the UK. This means that some individuals who need to travel long-haul will still need to self-quarantine in the UK in some cases depending on their route and transit stops. The measures are not reciprocal, so travellers should also check what self-quarantine or other restrictions apply in all countries they intend to enter or transit before travelling.

Exemptions due to purpose of travel to the UK 

Separately, there is a list of individuals who are exempt from data collection and/or self-quarantine due to the purpose of their travel to the UK. This list mainly focuses on haulage and transportation workers, medical and scientific professionals needed to assist with the COVID-19 pandemic, professionals required to maintain essential infrastructure and diplomatic personnel, as well as some businesspeople, sportspersons and media professionals in limited circumstances. Cross-border workers are listed as exempt in England, Wales and Northern Ireland, but not in Scotland. There are also complexities to be aware of for cross-border workers, which are covered in this article.

Employers should note that the quarantine does not prevent a new employee from having their right to work checked remotely, or from being onboarded and starting work at the address where they are self-isolating.

4. ‘Essential travel’ policy for travel outside the UK

On 17 March 2020, the Foreign and Commonwealth Office issued a global advisory against all but essential travel. From 4 July 2020, this has been modified to exempt listed countries and territories that the Government considers do not pose an acceptably high risk for British travellers. Individuals intending to travel to these destinations should still ensure they check local requirements and restrictions, in particular about whether a period of self-quarantine is required on arrival.

5. Arrangements for visa holders with expiry dates to 31 August 2020

On 29 July 2020, the Home Office updated its COVID-19 advice for UK visa applicants and temporary UK residents to confirm that holders of UK visas with an expiry date between 24 January 2020 and 31 July 2020 have been allowed a further ‘grace period’ to 31 August 2020.

As clarified in an update made on 30 July 2020, individuals with leave expiring between 1 August and 31 August 2020 are also covered by the grace period.

Those who are covered by the grace period continue to be lawfully in the UK on the same conditions as previously. This means they will remain entitled to work, study and rent accommodation if their conditions previously allowed this. They do not have to contact the Home Office if they are able to leave the UK by 31 August 2020.

The guidance stops short of confirming the grace period is a further automatic extension of leave. Aside from the questionable legality of this, the change in messaging is important, as it is a strong signal that there should be no expectation of further lawful stay beyond 31 August 2020.

The guidance does confirm that no adverse consequences will apply to anyone with leave expiring between 24 January 2020 and 31 August 2020, even if they take no action to regularise their stay by contacting the Home Office within that time. They must however either depart the UK or make an application for further leave by 31 August 2020.

Under the previous concession in place between 22 May 2020 and 29 July 2020, holders of UK visas with an expiry date between 24 January 2020 and 31 July 2020 were able to make a free application to have their stay extended to 31 July 2020 (using a short online form) if they were not planning to stay in the UK but could not leave the UK due to COVID-19 travel restrictions or self-isolation.

When the pandemic initially emerged, there was an arrangement for Chinese nationals with visa expiries between 24 January 2020 and 30 March 2020, whose stay was extended automatically to 31 March. An application process was then implemented for those with expiries up to 31 May. This was made available as an email request, and then replaced with an online form.

Anyone whose leave expiry was extended to 31 May received an automatic extension to 31 July. Those who had not applied for an extension before and needed their visa to be extended to 31 July had to request this using the online form.

Those who need a status letter confirming the extension of their leave or a new BRP with the revised expiry date should contact the Coronavirus Immigration Team (CIT) at CIH@homeoffice.gov.uk to request this. In other cases, no further documentation has been issued to affected individuals, other than the email from the CIT in response to an extension request made either by email or using the online form.

6.‘Exceptional assurance’ arrangements for those unable to depart the UK after 31 August 2020

Individuals with leave expiring between 1 September 2020 and 31 January 2021 are able to submit a request to the Coronavirus Immigration Team for ‘exceptional assurance’ if they intend to depart the UK but cannot do so by the date their leave is due to expire. The request is submitted using an online form and is free of charge. The request must be made before the date the person’s leave expires. However, the Home Office only confirmed on 10 December 2020 that people with leave expiring between 1 December 2020 and 31 January 2021 could apply for exceptional assurance, so it may be that those with leave expiring in early December 2020 may be treated sympathetically if they apply after expiry.

Due to technical difficulties with the online form, the Home Office put a temporary email-based process in place from 23 November 2020. Applicants should check the GOV.UK website for the correct online form or email-based process at the time they need to apply.

People who were covered by the grace period were able to apply for exceptional assurance, however the deadline for doing this was 31 August 2020.

Exceptional assurance is not leave to remain but the Home Office states that if this is granted, it will protect a person from any action or adverse consequences from the UK government after their leave has expired. If their previous immigration conditions allowed them to work, study or rent accommodation, they will be able to do this during the period of the exceptional assurance.

A person who requests exceptional assurance will have to provide the Home Office with details of their circumstances, including stating and substantiating why they are not able to depart before their existing leave expires. Evidence of a flight booking or positive coronavirus test result may be required for example.

If it becomes clear that a person will still be unable to depart the UK by the assurance date confirmed by the Home Office, they must submit a fresh online form and updated supporting information. This must be done before the assurance date.

Our view is that requesting exceptional assurance should only be used as a last resort for the following reasons:

• It is in effect a period of tolerated overstay, which will have to be declared and may have adverse consequences from the perspective of making future applications for countries other than the UK;

 

• Subject to further COVID-19 concession announcements, there will be significant restrictions on regularising UK immigration status in-country if the person’s circumstances change such that they no longer wish to depart the UK;

• The Home Office has not yet explicitly confirmed whether the terms and conditions remain in place between when a person’s leave expires and when they are granted exceptional assurance (although this is likely to be the case); and

• It is not clear whether no longer having valid leave in the UK will invalidate/prohibit extension of any travel, medical or other insurances the person holds, or if they may become subject to NHS charging for some medical conditions.

In a 17 December 2020 update to its guidance, the Home Office confirmed that holders of exceptional assurance will be able to apply for leave to remain to regularise their stay. Applicants will need to meet the requirements of the route they are applying for, pay the UK application fee and submit the application prior to the expiry of their exceptional assurance.

For some people, for example those who wish to be able to continue to work, study or rent accommodation until they are able to depart the UK, or who anticipate possibly wanting to remain in the UK if it remains impossible to depart, it may be more appropriate to consider making a further fee-paid application than requesting exceptional assurance. We are happy to discuss individual circumstances on a case-by-case basis.

7. Arrangements for health and social care workers

The Home Office has put in place a range of provisions to assist health and social care workers during the pandemic.

Free one-year visa extension

On 31 March 2020 the Government announced that NHS doctors, nurses and paramedics whose visas were due to expire before 1 October 2020 could have their leave to remain extended for one year.

This provision was substantially expanded via an announcement on 29 April 2020. Following the expansion, an automatic one-year visa extension is available to frontline health and social care workers working both for the NHS and in the independent sector whose visas expire between 31 March 2020 and 30 September 2020. It should be noted that care workers in nursing homes or private residences are not included.

On 1 May 2020 the Government published an exhaustive list of eligible occupations – biochemist; biological scientist; dental practitioners; health professional; medical practitioner; medical radiographer; midwife; nurse; occupational therapist; ophthalmologist; paramedic; pharmacist; physiotherapist; podiatrist; psychologist; social worker; speech and language therapist; therapy professional.

The arrangements also cover the dependent family members of eligible workers.

Extensions will be issued automatically, and individuals will be exempt from having to pay the Government application fee and Immigration Health Surcharge. NHS workers with an outstanding application will be offered a refund.

Eligible applicants will be identified and contacted directly by the Home Office. Those who are not sure whether they are within scope of the concession should contact us or the HR representatives responsible for immigration matters at their employer, as employers identified by the Department for Health and Social Care will liaise with the Home Office to compile a list of eligible individuals.

On 23 November 2020 the Home Office announced that the extension concession had been expanded to cover those in eligible occupations whose leave expires between 1 October 2020 and 31 March 2021. Individuals who are changing employer are outside the scope of the concession. The application process was also changed to require eligible applicants to complete an online form. As at 24 November 2020 the form has not yet been made available, however applicants can sign up to receive an email alertwhen it is.

Those who have already made a paid-for extension application may apply to the Home Office to have one year’s fees refunded. The process for doing this is set out on GOV.UK here.

Immigration Health Surcharge exemption

In a public announcement on 21 May 2020, and following significant pressure from Members of Parliament, the Government announced an intention to exempt all NHS staff and care workers from having to pay the Immigration Health Surcharge. The Government subsequently published further details on this, as well as launching a new Health and Care visa under Tier 2, which we discuss in this article.

Bereavement scheme

The 29 April statement also confirmed that the family members of frontline workers who die from COVID-19 will be offered free and immediate indefinite leave to remain (ILR). A publicly-available bereavement scheme policy was subsequently published on 20 May 2020, stating that ILR will be granted to any non-EEA family member of any NHS worker, including support staff, or a healthcare or social care worker in the independent health and social care sector. Eligible individuals should be contacted by the Home Office, but can also email UKVINHSTeam@homeffice.gov.uk if they have not been contacted and believe they are within scope. Although excluded from the published concession, the EEA/Swiss national family members of EEA/Swiss frontline workers who have passed away due to COVID-19 may be eligible to apply for ILR under the EU Settlement Scheme. It will be necessary to contact UKVI’s NHS Team to ascertain what, if any, arrangements will be available for the EEA/Swiss family members of non-EEA frontline workers, as they appear to have been overlooked.

Relaxation of work restrictions

Also, since 31 March 2020, there is no limit on the number of hours per week a person can work or volunteer if they work for the NHS as a doctor, nurse or paramedic and are in the UK as a Tier 4 student, a Tier 2 worker working for the NHS as a second job, a visiting academic or a short-term visa holder who is allowed to volunteer. These provisions were expanded on 1 May 2020 to cover those working in all eligible COVID-19 frontline occupations, to state that frontline work can be undertaken at any NHS hospital without the need to notify the Home Office and that supplementary frontline work is allowed in any role, at any skill level and with no limit on the number of hours allowed.

Extension of OSCE examination deadline for nurses

Pre-registration nurses have also had the deadline to sit the Occupational Structured Clinical Examination (OSCE) pushed back to 31 December 2020, and they have been given until 31 May 2021 to pass this if they are not successful on their first attempt.

8. Moving immigration category

The Home Office initially announced a concession to allow Chinese nationals currently on a Tier 2 (Intra-company Transfer) visa to switch in-country to a Tier 2 (General) visa. Normally such a switch would require a fresh visa application to be made from abroad.

This concession was significantly widened in the guidance from 24 March 2020 to cover switching into all long-term visa categories until 31 May 2020, and then extended on 22 May 2020.

The current position is that provided the application is submitted by 31 August 2020, anyone with a visa expiring between 24 January 2020 and 31 August 2020 (including those who are covered by the grace period) who would normally have to depart the UK to submit a long-term visa application from abroad is permitted to submit their application in the UK instead. The usual UK immigration fees for in-country applications will be charged.

Although the guidance on GOV.UK does not elaborate what a ‘long-term’ visa is, standard correspondence from the Coronavirus Immigration Helpline confirms that this excludes the Tier 5 Youth Mobility Scheme, Tier 5 seasonal worker and overseas domestic worker categories, as well as Tier 4 applications from individuals in receipt of a Chevening, Commonwealth or Marshall scholarship.

On 26 June 2020 the Home Office confirmed on GOV.UK (see National Archives) that individuals whose leave was due to expire after 31 July 2020 could make an application from within the UK if:

• They urgently needed to make the new application, eg to start a new job or course of study, including where this involves switching immigration route; and
• They could not leave the UK to make an application from overseas.

This concession was removed on 29 July 2020 and eventually replaced on 7 August 2020 with a less restrictive concession for those whose leave expires after 31 August 2020. Under that version of the concession, individuals were allowed to apply for further leave in circumstances where they would normally have to apply for entry clearance if their application was urgent. A revision on 16 October 2020 introduced a further requirement for family and private life applicants, namely that the applicant must also show their application cannot be made abroad due to coronavirus. The main switching concession for applicants in other immigration categories has not been updated, however it is possible this could be revised in the near future as the two concessions are currently inconsistent. The cautious approach would be to put in submissions with all switching concession applications outlining both the urgency of the application and any reasons relating to coronavirus that mean an entry clearance application cannot be made.

We would suggest that detailed representations are submitted with any application that relies on the concession, addressing both why it is urgent and why the applicant cannot apply from abroad.

Applicants who are intending to submit their application within the UK when they would ordinarily be required to do so from abroad should also be aware that they still need to satisfy all the other requirements of the relevant visa category in the usual way and that they may encounter delays in receiving a decision due to factors such as UKVCAS and English-language testing centre closures/reduced capacity or UKVI staff shortages.

In an update on 17 December, the Home Office narrowed the switching concession to require that from 1 January 2021 onwards, applicants who wish to rely on the concession will need to meet the switching rules of the route they are applying from. The switching rules that apply will depend on the route that the applicant was in before they were issued ‘exceptional assurance’, if applicable. For example, if the applicant was in the UK as a visitor, they will not normally be able to switch into another route.

There currently is a lack of clarity about which online form applicants should use in some cases, and other issues such as whether applicants will need to complete tuberculosis screening in cases where this would have been required as part of the equivalent entry clearance application. The Home Office has not provided consistent guidance on these issues. Applicants with an imminent visa expiry date or who are not normally allowed to make their application from within the UK should seek advice on the best approach for their circumstances. This will vary on a case-by-case basis.

As announced in an update to the guidance on 14 April 2020, Tier 2 or 5 applicants whose in-country application is pending may start work in their new role before the application has been decided, if the following requirements are met:

• They have been assigned a CoS by the sponsor of the new role;
• Their application has been submitted online before their current visa expired and this can be evidenced to their sponsor; and
• The job they start is the same as the one listed on the CoS connected to their pending application.

The sponsor must comply with reporting responsibilities from the point at which they assign the CoS, not from the date the application is granted. Relevant changes need to be reported on the CoS as usual.

In an update to the guidance on 17 December 2020, the Home Office announced that the ability for work visa applicants to start their new role before a decision has been received will only apply to applications where the CoS has been assigned before 1 January 2021. Where a CoS is assigned from 1 January 2021 onwards, the applicant will need to wait for a decision before they can start their new role.

Before the application is decided, sponsors will not normally be able to make reports using the sponsor management system (SMS), unless they already sponsor the person in another role. During this time, any information that must normally be reported on the SMS in accordance with the sponsor guidance, such as a change in migrant circumstances, must be recorded and retained on the sponsor’s internal systems.

If the person’s application is rejected as invalid or is eventually refused by the Home Office, the sponsor must stop sponsoring them and they must stop working for the sponsor.

9. The Tier 2 cooling-off period

Employers should carefully consider the situation for Tier 2 visa holders who are currently stranded abroad, or requests from Tier 2 migrants who might wish to return to theirhome country or to travel to any other country to work remotely. If a Tier 2 visa holder is unable to return to the UK before their visa is due to expire, they may be caught by the cooling-off period which will prevent them returning to the UK on a Tier 2 visa for 12 months, or at the very least until the beginning of next year when the new Skilled Worker and Intra-Company Transfer categories come into effect. The cooling-off period does not apply if a person is applying for a Tier 2 General visa and their salary is above £159,600, if they are applying for a Tier 2 Intra Company Transfer visa and their salary is above £120,000, or if their original certificate of sponsorship was granted for three months or less.

We are hopeful the Home Office will offer some discretion, but this has not been formally confirmed. It is important that this is flagged with employees who could be affected. Please contact us for further guidance on this.

10. Indefinite Leave to Remain

Tier 2 General migrants who want to ultimately apply for ILR in the UK are subject to a rule on absences in that they cannot exceed 180 days absence from the UK in any 12-month period. There are some exceptions to this requirement, particularly when absences are due to an exceptional circumstance. It is likely that Tier 2 visa holders who accrue absences abroad as they are unable to travel due to COVID-19 will be able to argue that this amounts to an exceptional circumstance but the Home Office has not yet published any formal policy on the issue. We would recommend in this instance to keep records of flight tickets and other documentation to evidence the absence, which could be submitted at a later stage to support an ILR application.

11. Family and private life applicants

A range of temporary concessions and statements of existing policy were initially published on 9 June 2020 for family and private life applicants. The concessions do not apply to applicants in other categories. Some of the concessions require discretion to be exercised, so should be carefully prepared with supporting representations and evidence. Please contact us if assistance is needed with this.

Applicants stuck abroad

Where an applicant is outside the UK and has not made a further application before their leave as a family member or on private life grounds expired, a concession on GOV.UK confirms that a ‘short break’ in continuous residence will not count against them in the future. They are however expected to make their next application as soon as they can. It is not clear on GOV.UK whether an applicant abroad will be able to rely on their earnings from employment or self-employment if they are required to apply for entry clearance.

All family and private life applicants

The Home Office’s main guidance on family and private life applications was last updated on 1 November 2020 and include the following COVID-19 concessions:

• An applicant may start, extend or complete a route to settlement despite being in the UK as a visitor or with leave granted for six months or less, or being in-country or abroad for a short period without leave, where they demonstrate they were not able to travel or apply due to COVID-19 between March and 31 August 2020
• Individuals whose leave expires after 31 August 2020 can make an application to switch to a family or private life route in-country where they can show their application is urgent eg because of a family emergency, and there is a reason they cannot apply from outside the UK due coronavirus 
• A short period spent abroad after leave expired may be ignored where an applicant shows they could not return to the UK to extend their leave due to COVID-19, provided they extend their leave or make an application for entry clearance as soon as practicable
• An applicant who applies for entry clearance abroad will be allowed to have this leave added to previous leave in the same family or private life category for the purposes of settlement, provided this was done to maintain continuity of leave
• A period of leave outside the Immigration Rules will be disregarded if it was granted by Border Force to allow an applicant to re-enter the UK after being stranded overseas due to COVID-19 when their leave expired between 1 March 2020 and 31 August 2020
• Individuals with leave that expires between 1 December 2020 and 31 January 2021 who intend to leave the UK but have not been able to do so can apply for exceptional assurance. They will need to email cihassuranceteam@homeoffice.gov.uk to complete their application.

Fiancés, fiancées and proposed civil partners

Individuals in these categories who have been unable to attend their ceremony due to COVID-19 were covered by the grace period in the same way as individuals in other immigration categories. If their ceremony cannot take place before the expiry of their fiancé/fiancée/proposed civil partnership leave, they can make a fee paid application to extend their leave for a further six months, provided the ceremony will take place within that time.

The guidance as updated on 4 September 2020 also provides the option of requesting exceptional assurance where the ceremony cannot take place before the expiry of fiancé/fiancée/proposed civil partner leave, stating that the request should be accompanied by evidence of when the ceremony will take place. Exceptional assurance can be requested by way of an email to cihassuranceteam@homeoffice.gov.uk. The Home Office has confirmed to us that people who do this will be allowed to make an application for further leave to remain as a partner after their ceremony, and will be placed on a five-year route to settlement if they meet all the requirements for this aside from having made the application while being in the UK without valid leave.

Minimum income and adequate maintenance requirements

Two concessions have been implemented concerning the minimum income and adequate maintenance requirements. The GOV.UK website was last updated on 2 November 2020. The guidance – Appendix FM 1.7: financial requirement and Appendix FM Section 1.7A – Adequate maintenance and accommodation – were last updated on 4 November 2020. It is therefore important to read all of the publicly available information together.

Those who have lost income due to the pandemic up to 1 January 2020 will be allowed to count their employment income immediately before the loss, provided that the applicant is able to meet the requirement for at least six months up to the date the income was lost.

Those who have been furloughed or paid through the job support scheme will have their income assessed as though they were earning their full salary throughout the furlough period. This is not specified on GOV.UK but applicants will obviously need to submit evidence of the furlough arrangement if seeking to rely on this concession.

Self-employed individuals who have lost annual income between 1 March 2020 and 1 January 2021 will generally have this disregarded.

Although not particularly clearly worded, the concession also contains a reference to employment income from the same period being ignored for future applications, which we take to mean that an application for further leave or indefinite leave to remain will not be adversely affected due to the minimum income or adequate maintenance requirement having been modified in line with the concession.

It appears these concessions are being updated on a rolling basis, so we expect them to be amended further. To-date there has been a lag.

Specified documents

The Immigration Rules allow an application to be approved in some circumstances despite required specified documents not being provided, or for the case worker to ask for them after the application has been submitted but before it has been decided. This does not amount to a new concession however it is helpful to have confirmation that evidential flexibility will be considered if a person cannot obtain documents required for their application due to the pandemic.

English-language and Knowledge of Language and Life requirements

There is also already a provision in the Immigration Rules that allows an applicant in the partner or parent categories to be exempted from the English-language requirement if there are exceptional circumstances which prevent them from being able to meet it.

The Home Office’s guidance on the English language requirements for family members was updated on 21 July 2020 to confirm that an English language exemption can be requested if the relevant test centre was closed or the applicant could not travel to it as at the date they made their application. Evidence of this will need to be submitted, for example a print-out of information on the test centre’s website taken on the date of application. An exemption will also need to be specifically requested.

Those who state in their application that they have been delayed in taking a test but intend to do so can have their application placed on hold until they are able to provide details of having completed the test. However, if the delay is due to the testing centre being closed, then the better course would be to request an exemption.

Family route applicants for indefinite leave to remain can also have their application put on hold if they state that the relevant Life in the UK Test centre or English language test centre (if applicable) was closed or inaccessible due to COVID-19. The necessary confirmation of completing the test can be accepted after the date of application in these circumstances.

12. Tier 2 sponsor licence holders

Businesses holding a Tier 2 sponsor licence have certain reporting and record-keeping duties in relation to sponsored employees. The spread of COVID-19 and the consequential restrictions on travel could have implications for complying with sponsor licence duties. For instance, delays to start dates and changes in work location normally need to be reported within ten working days on the sponsor management system. The economic impact of COVID-19 may also mean that sponsors have to cut salaries or place employees on unpaid leave, which would be considered as changes in circumstances that need reporting if they relate to Tier 2 workers.

We would recommend that sponsors seek advice from us if they are unsure of whether a course of action they are considering might impact on the business’s sponsor licence duties. Failure to do so is serious as it can jeopardise the licence and the immigration status of sponsored workers.

Some particular issues to bear in mind:

• Sponsors must continue to report changes to their own circumstances as normal, including any changes to their key personnel, eg where a person leaves the business, where the organisational structure of the business changes or where it ceases trading or becomes insolvent
• Under normal Home Office guidance, a Tier 2 migrant can only delay their start date by up to 28 days once their visa has been granted, however the Home Office has confirmed this requirement will be waived if a start date has to be deferred due to COVID-19-related travel restrictions, or due to the sponsor dealing with the economic impact of the pandemic. Any delay to their start date should be reported on the sponsor management system, including delays beyond 28 days.
• Many Tier 2 workers will now be working from home as offices encourage remote working. A Tier 2 sponsor normally must report a change in work location on the sponsor management system within ten working days. The Home Office allows Tier 2 workers to work from home but the Home Office has confirmed that working from home temporarily in this circumstance is not a change of work address requiring an SMS report. Sponsors should continue to report any other changes, for instance if a sponsored employee is working out of another office abroad, or continues to work from home either in the UK or abroad in circumstances the sponsor has assessed are no longer related to COVID-19 restrictions. Sponsors should also ensure that they continue to be able to monitor attendance at work as part of their other ongoing reporting and monitoring duties.
• Tier 2 sponsors must have a copy of the migrant’s passport and visa on file. See below for a link to our separate guidance on how to conduct right to work checks when employees are not able to attend work in person.
• A Restricted CoS must be assigned within three months. Once assigned, it must be used within three months. If either of these deadlines is missed, the CoS will become invalid and a new CoS will be required. However, where the CoS expired because the applicant was unable to travel due to the COVID-19 pandemic, guidance for sponsors states it may still be accepted by the Home Office. Employers were previously advised in the COVID-19 guidance of 3 April 2020 to submit details to the Coronavirus Immigration Help Centre at CIH@homeoffice.gov.uk where decisions will be made on a case-by-case basis. This instruction no longer appears in the current guidance however would continue to be a sensible approach.
• Normally a Tier 2 worker cannot take unpaid leave of four weeks or more per calendar year, according to their normal working pattern, however the Home Office has published a concession allowing unpaid absences from work due to the COVID-19 outbreak.
• If a sponsor is having to consider cutting salaries and/or reducing working hours, this will have reporting and potentially other implications for Tier 2 workers. The Home Office updated its COVID-19 guidance for Tier 2, 4 and 5 sponsors on 3 April 2020. This confirms that employers may reduce the salary of sponsored workers to 80% of their salary or £2,500 per month, whichever is lower. Any changes must be part of a company-wide policy to avoid redundancies in which all workers are treated the same. The concession applies even where the SOC code minimum salary is higher than £30,000 (or other applicable general minimum threshold). The reduction is permitted as a temporary measure and, once the relevant policy has ended, the salary must return to the previous rate in accordance with the CoS. SMS reports must be submitted to notify the Home Office of all salary changes.
• Sponsors may have to consider terminating the employment of sponsored workers in light of the economic downturn, which will trigger reporting requirements for the sponsor and will have immigration implications for individuals.

For further information on the immigration implications for Tier 2 workers of changes to salary, the Government’s Furlough Scheme and redundancy, see our separate briefing note.

Services for sponsors have also been affected. For example, the service for Non-Premium A-rated sponsors to make eligible priority requests was suspended from 7 April 2020 and has been reinstated from 5 October 2020 with reduced capacity.

Guidance confirms that until at least 30 September 2020, the Home Office is allowing prospective or current sponsors to submit scanned documents in support of sponsor licence applications or sponsor-related requests. Originals must however be provided upon request.

Onsite visits to sponsors were previously suspended but have resumed. Some sponsor licence applicants will not receive a decision until the visit has been carried out and the compliance visit report has been assessed, so some applications will continue to be delayed.

13. Global Talent applicants

On 3 April 2020, the Government confirmed that Global Talent applicants whose endorsement has expired because they have not been able to travel to the UK may still be eligible for a visa, and that their circumstances would be considered on a case-by-case basis. This concession was replaced on 11 August 2020 to state that endorsements granted on or after 24 January will be accepted for applications submitted before 31 December 2020. Applications not meeting these requirements may still be considered on a case-by-case basis.

When making an application that relies on this concession, is advisable for to submit representations relating to disrupted plans to make a visa application, along with supporting evidence.

On 1 July 2020 a temporary concession was implemented for Global Talent applicants who are undertaking COVID-19 related research. It only applies to individuals who are endorsed by UK Research and Innovation under the endorsed funder route.

Under the concession:

• the written confirmation from the endorsed funder must confirm the applicant’s award has at least one year remaining as at the date of application for endorsement (instead of the normal two years)
• the written confirmation must state that the applicant is working on a COVID-19 related grant and provide the relevant unique database reference number from the UK Collaborative Research COVID-19 Research Project Tracker
• the applicant’s employment or hosting agreement must have at least one year remaining on it as at the date of application for endorsement (instead of the normal two years)
• in-country switching will be allowed from any immigration category

Individuals covered by the concession will be granted entry clearance or leave to remain as normal. They will be able to request leave for up to five years and will become eligible for indefinite leave to remain after three years. The concession will remain in place until 31 January 2021 unless it is further extended. 

14. Citizenship

Excess absences for naturalisation applications

On 2 September 2020 the Home Office published an update to its naturalisation guidance. The update confirms that where an applicant has absences from the UK of between 480 to 900 days during the qualifying period for naturalisation (or between 300 and 540 days for applicants with a British spouse), their excess absences may be ignored if they were unable to return to the UK due to a global pandemic.

Absences of more than 100 days but no more than 180 days in the final year of the qualifying period may also be ignored if the applicant was unable to the UK due to a global pandemic. There is also discretion to ignore a higher level of final year absences in limited circumstances.

In most cases, applicants will also be required to have established their home, employment, family and finances in the UK.

British citizenship ceremonies

Applicants with a previous citizenship ceremony booking will be contacted by an officer to reschedule the ceremony to a later date. Those wishing to book a new appointment are advised to monitor the relevant Local Authority website for updates. Some local authorities have put arrangements in place to conduct virtual citizenship ceremonies. The normal three-month deadline to attend a citizenship ceremony following the approval of a British citizenship application has been extended to six months.

15. Implications for EEA/Swiss nationals

As the UK has now left the European Union, nationals of the European Economic Area and Switzerland and their family members currently living in the UK have until the end of June 2021 to register under the EU Settlement Scheme (EUSS) for either pre-settled and settled status. They should continue to apply via the specially designed app available on both iPhone and Android devices. Applications for the EUSS can also be made from abroad.

In order to qualify for pre-settled status or settled status, the individual needs to have been resident in the UK before 31 December 2020. The recent mutation in the COVID-19 virus resulted in widespread bans on travel to the UK from 20 December, meaning that some EU nationals who had planned to relocate to the UK in late December may now be unable to do so, thus compromising their EU Settlement Scheme eligibility. At the time of writing, the Home Office have not indicated any intention to introduce a concession for individuals affected by the travel bans.

For an individual to qualify for settled status, normally they must not be absent for over six months in any 12-month period. There is some discretion for absences up to 12 months for an ‘important reason’ such as sick leave, or compulsory military service of any length. There is therefore good reason to believe that an otherwise eligible individual who is abroad and who cannot return to the UK will have some discretion applied to them if their time abroad takes them beyond the six-month limit. We would suggest though that they take legal advice on this.

The UK is currently in a transition period which will last until the end of December 2020 when free movement arrangements will come to an end.

Currently, the Home Office is continuing to process EUSS applications, albeit with anticipated delays. Some new applications can still be submitted using the mobile app or online application form. After a period of suspension, since June 2020 non-EEA applicants have been able to apply online again if they do not hold a biometric residence card. Applicants who need to complete a paper application form must submit a request for a form to the Home Office and can continue to do so online.

The EU Settlement Resolution Centre telephone helpline has been reinstated and enquiries can be submitted via email.

Any applicants required to present their original ID documents at an ID document scanner location should note that this service has been suspended. It is currently possible to send passport and other ID documents directly to the Home Office by post, however it may take longer than usual for them to be returned.

16. Right to work checks

A right to work check (RTW) will usually involve an employee of the employer meeting with a new starter or existing employee in-person to check their documents. This may not be straight-forward while social distancing measures or lockdowns apply. Under the Government’s existing guidance for RTW, supplemented by temporary adjusted guidance published on 30 March 2020, employers must still conduct RTWs even if they are not able to meet with individuals face-to-face. They have provided leniency around how these are done so that scanned copies can be used on an adjusted basis instead of originals, but all other requirements must be met and a retrospective RTW conducted once normal working arrangements resume. Some of the Home Office’s published concessions also have implications for RTWs. For information on the options for RTWs during and after the COVID-19 pandemic, see our separate article.

For further information

The situation is continually changing. This advice will be updated but it is important to consult with us before taking action and to ensure ongoing compliance and best practice while immigration arrangements remain affected by the pandemic.

For information and guidance on issues including business continuity, contractual considerations and employer/employee relations visit our Lewis Silkin COVID-19 hub.
The main UK Government webpages for updates is GOV.UK – Coronavirus (COVID-19): immigration and borders.

The Home Office also has a dedicated Coronavirus Immigration Help Centre: 
Telephone: 0800 678 1767 (Monday to Friday, 9am to 5pm)
Calls are free of charge from inside the UK.
Email: CIH@homeoffice.gov.uk

This publication provides general guidance only: expert advice should be sought in relation to particular circumstances.
© Lewis Silkin LLP 2020

(Updated as of 23 December 2020)

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

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

During the course of 2020, many EEA nationals who have been living in the UK have moved abroad due to reasons relating to the COVID-19 pandemic. In important guidance issued by the Home Office on 15 December 2020, the Home Office has confirmed that the normal rules on absences will be applied when assessing eligibility for pre-settlement and settlement under the EU Settlement Scheme (EUSS). What this means is that some EEA nationals will need to return to the UK by 11 pm on 31 December 2020 if they wish to avoid losing their eligibility for pre-settled and/or settled status under the scheme.

Text:

What does the guidance say on continuity of residence?

In the guidance, the Home Office has declined to offer any concessions outside the EUSS Immigration Rules in relation to the COVID-19 pandemic.

As a reminder, only individuals who start a continuous residence period by 11 pm on 31 December 2020 are eligible under EUSS. For settlement under EUSS, a person must have five years’ continuous residence in the UK. This is interpreted by the Home Office to mean that they must have no more than six months’ absence from the UK in any 12-month period across the five years, except for:

• A single period of absence of more than six months, but not more than 12 months for an ‘important reason’ – accepted reasons include pregnancy, childbirth, serious illness, study, vocational training or an overseas posting
• Compulsory military service of any duration
• Posting on Crown service of any duration (or accompanying a person on Crown service as their spouse, civil partner, durable partner or child)
• Working in the UK marine area of any duration

The guidance keeps to this formula, but also introduces a very limited interpretation of when the Home Office will accept that COVID-19 related single absence will be accepted as an ‘important reason’. The interpretation focuses on the accepted reasons of study and illness as follows:

• Being a person studying in the UK, who studied outside the UK because of COVID-19
• Self-isolation under quarantine conditions when ill with COVID-19
• Self-isolation under quarantine conditions when sharing a house with someone ill with COVID-19
• Being required to self-isolate due to being in a vulnerable or high-risk category, or being in contact with someone who is

Practically, aside from students, unless a person has suffered a ‘long COVID’ type illness or has been required to shield for more than six months, it is highly unlikely a person will be able to bring themselves within this interpretation of important reason.

It should be noted that the ‘important reason’ provision:

• Only relates to a single absence – therefore people who have more than six months’ absences in any 12-month period will not be able to avail themselves of the provision if none of their absences exceeded more than six months at any one time
• Can only be used once across the entire five-year period – so anyone relying on this provision for a COVID-19-related reason will need to ensure they have no more than six months absences in any other 12-month period, or this will break the continuity of their residence for settlement

Something that is also not made explicit in the guidance is that cumulative absences of more than six months in any 12-month period will also break a person’s continuity of residence for settlement eligibility under EUSS.

Why is this a problem?

The restrictiveness of the COVID-19 policy will undoubtedly catch some people out.

Examples of situations that would fall outside the policy include where a person:

• has chosen to work remotely during the pandemic, but not on an overseas posting
• has left the UK to be with family abroad
• has left the UK because they feel safer
• has been unable to return to the UK due to flight restrictions or other travel disruption relating to the pandemic

‘Important reason’ is not an exhaustively defined term, and it is possible to argue that any circumstances ought to be recognised as such. However, the Home Office has signalled how it intends to treat COVID-19 related absences and it would take cogent reasons to prompt a departure from their published policy.

What happens if there is no return to the UK by 11 pm on 31 December 2020 for EEA nationals who have broken the continuity of their residence?

For people who already have pre-settled status

There will be no immediate effect on the validity of their pre-settled status provided they do not remain outside the UK for a continuous period of two years or more. However, the break in the continuity of their residence will mean that they will not qualify when they come to apply for settled status. Once their pre-settled status is due to expire, they will either need to leave the UK or apply for further permission to stay in the UK under an alternative immigration category if they qualify for one.

Currently, the Immigration Rules for other categories that lead to settlement do not allow time under EUSS to be counted towards the qualifying period for settlement. Unless the Home Office amends the Rules in the future, what this will mean is that affected individuals will have to start their qualifying period for settlement again from the point they move into another immigration category.

This is a matter we intend to raise with the Home Office. If the Home Office decides not to add EUSS as a category for which time can be counted towards settlement in other immigration routes, then the best course of action for affected individuals may be to switch into alternative immigration routes earlier rather than later if this is feasible and their priority is to achieve settlement as soon as possible.

For people who have not yet applied under the EU Settlement Scheme

Most people who have acquired a right of permanent residence in the UK under EU law will not be affected, unless by the time they apply under the scheme they have been absent from the UK for a continuous period of five years. They must also still ensure they apply by 30 June 2021.

However, for people without a right of permanent residence, the break in the continuity of their residence will mean that if they do not re-enter the UK by 11 pm on 31 December 2020, they will have lost their eligibility under the EUSS altogether. This is because they will no longer be considered to have started a continuous residence period by the required deadline for eligibility under the scheme. 

What can be done to preserve eligibility to apply under the EU Settlement Scheme and to settle under it either immediately or in the future?

We would suggest that all EEA nationals who have been previously resident in the UK without a right of permanent residence under EU law/without settled status under EUSS, but who are currently residing abroad should take the following actions as appropriate:

• Review both their single and cumulative absences from the UK as at the date they intend to return to the UK, including considering whether any one (but only one) period of absence was for an ‘important reason’
• Identify the latest date they can return to the UK without it affecting their eligibility to apply under EUSS if they have not yet applied, or for settlement if they already hold pre-settled status
• If the latest date has already passed, or will pass before 31 December 2020, or they anticipate having absences that would take them above the thresholds during 2021/at any point before they expect to qualify for settled status – return to the UK by 31 December 2020 so they can establish a fresh period of qualifying residence for the purposes of EUSS
• If the latest date has not yet passed but they cannot return to the UK by the date their eligibility for settled status will be affected, still consider making an application under EUSS from abroad before the latest date so that they will have a five-year period of pre-settled status in which to consider their options
• As relevant, closely monitor their future absences to ensure they do not breach the thresholds

Those who acquired a right of permanent residence in the UK should ensure they make an application for settlement under EUSS before they have been absent from the UK for five years, and by 30 June 2021. This application can be made while the person remains abroad.

We appreciate that the above assessments may be complex and that time is short to make them. If you require assistance, please get in touch with your usual Lewis Silkin immigration team contact, or email Immigration.London@lewissilkin.com over the holiday period.

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

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

From 1 December 2020 a new immigration system came into force in the UK. It will apply to EEA/Swiss (‘EEA’) nationals from 1 January 2021. Employers should have started preparing for these changes, including understanding the proposed new rules, checking recruitment plans and budgets, obtaining or reviewing a sponsor licence and assisting staff with applications under the EU Settlement Scheme.

Text:

The below timeline outlines the areas that employers need to consider and the order to take them in.

Inform your current EEA employees and their family members about their eligibility for the EU Settlement Scheme and British citizenship

 

Why?

Now, if you haven’t already, so the relevant employees can easily prove their UK immigration status and plan the timing of any British citizenship application.

Current EEA employees and their family members who are eligible but do not apply to the scheme by 30 June 2021 will lose their right to live and work in the UK under free movement law. Aside from the obvious business disruption and anxiety  this would cause, applications under the UK’s immigration system come at a significant cost, whereas applications under the EU Settlement Scheme are free. Making sure your employees are aware of their eligibility for Pre-Settled or Settled Status under the scheme, and thinking about the timing of upcoming moves of EEA nationals to the UK can save money in the long term.

The end of the transition period also has implications for how and when EEA nationals and their family members may be able to apply for British citizenship, with it being beneficial for some individuals to esnure their application for British citizenship is submitted by 31 December 2020.

See our webinar and Q&A on Brexit and the EU Settlement Scheme for further information.

We also highlight the potential pitfalls to avoid with the EU Settlement Scheme, particularly when the circumstances of the COVID-19 pandemic are factored in. See our article here on the six pitfalls and suggestions on how to avoid them.

Finally, we have prepared a simple scenario infographic of what employers need to consider if they are looking to hire an EEA national or family member of an EEA national in now or following the end of the transition period on 31 December 2020. Download it here.

Need more detailed assistance?

Under the Brexit strand of our Immigration Solutions for HR, you can pick and mix from a range of options to help you navigate the EU Settlement Scheme including our handy FAQ guide, specific training sessions and advice surgeries for your EEA staff.

We are also able 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.

Update your HR policies to include remote working and remote right to work checks

 

Why?

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. Carrying out a right to work check properly will shield you from liability for a civil penalty if you are found to have inadvertently employed somebody who does not have the right to work in the UK. The requirements remain in place, however certain temporary allowances having been made due to COVID-19 (which we cover here). HR teams need to stay on top of COVID-19 right to work compliance to avoid being exposed to illegal working penalties.

Need more detailed assistance?

Our Immigration Solutions for HR provide a full overview of the requirements for right to work compliance. We can also arrange bespoke training sessions for your HR team to upskill them in carrying out compliant checks or do keep a look out for our event on right to work checks in December.

Get to grips with the new system. How will it work? Who will it apply to? How much will it cost?

 

Why?

Businesses will need to familiarise themselves with the implications of the end of free movement and the new immigration system to avoid losses in productivity and talent, as well as minimising cost. This will only be possible if employers are aware of the actions they need to take to adjust their recruitment and employee retention strategies. The existing routes for sponsoring workers will be significantly reformed. For skilled workers, some of the existing requirements such as resident labour market testing will be removed, and it will be possible to sponsor skilled workers for jobs at A-level equivalent rather than degree level equivalent. There will also be lower salary thresholds and the introduction of ‘tradeable’ points-scoring criteria. See our overview article for further information about the main changes.

Need more detailed assistance?

Our Immigration Law Academies are a one-stop-shop for learning about the future immigration system. Our November online academy is now fully booked however our next one is being held on 25 and 26 January 2021. Find out more here, or get in touch with a member of our Immigration team to arrange for bespoke training.

Review HR processes to esnure that compliance standards are met

 

Why?

The Home Office sets stringent compliance standards for employers of migrants, and once they have been breached, it is often impossible to correct them retrospectively. Reviewing HR processes to ensure compliance with sponsorship and right to work obligations will give you the certainty required to focus your efforts on obtaining and retaining talent.

Need more detailed assistance?

As part of our Immigration Solutions for HR, our Immigration team can offer training, compliance guides and mock audits of your existing HR and right to work processes to analyse compliance, identify any areas of risk, suggest improvements and prepare you for a real Home Office audit. You may consider that carrying out a sponsorship mock audit and/or right to work mock audit would be a useful exercise if you need to renew or expand your sponsor licence, particularly as the Home Office has now resumed sponsor compliance visits.

Review or apply for a spnsor licence if you anticipate recruiting from the EEA and the rest of the world from January 2021

Before October 2020 to ensure that a new or expanded licence is obtained before the new system goes live. Sponsor licence applications can take up to eight weeks to process.

Why?

The Home Office has written to sponsors to confirm that renewals can be submitted earlier than the normal month ahead of expiry. We anticipate that the queues for consideration of sponsor licence applications will only grow longer as we move towards the end of the year, because many sponsors’ licences are due for renewal if they originally became a sponsor when the Points Based System was launched in 2008. By applying in the coming months, you will beat the inevitable rush at the end of the year and avoid suffering with delays to new hires as a result.

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.

Review international recruitment processes to develop an efficient mechanism for analysing skills requirements, shortage occupations and SOC codes for sponsored workers

 

Why?

An out-of-date recruitment strategy will increase the risk that relationships with existing employees and new hires will be damaged if mistakes are made. Adapting early will give your recruitment team confidence they understand the new processes, saving the business headache, time and money.

Need more detailed assistance?

Consider whether you require training on what jobs will be eligible for sponsorship under the new system and the criteria that will need to be met. If so, get in touch with a member of our immigration team to explore how we might help. As an indication, you can view our training brochure here. We also offer a handy compliance guide for sponsors of workers, which includes insight into how best to handle SOC code allocation and revision of skills requirements.

Review whether a non-sponsored working visa route may be suitable for current and potential employees

Identify relevant employees before November 2020 to allow time for the full range of options to be analysed before the new system is implemented.

Why?

Existing employees with upcoming visa expiries, and prospective employees due to start work next year may be eligible for an expanded range of non-sponsored immigration categories under the new system. Global Talent, Innovator and Start-Up visas provide skill-specific routes to live and work in the UK, while Youth Mobility and UK Ancestry visas are available for some individuals. With more non-sponsored working routes set to be introduced, including a new route for Hong Kongers, companies should be aware of the immigration options available to their current and potential employees. Not only will this allow for improved recruitment strategies, but the absence of fees specific to sponsorship means that these routes can be cheaper.

Need more detailed assistance?

If you need to explore the options that might be available to existing workers and new hires under the new regime, get in touch with our immigration team. We are able to advise on and assist with any necessary applications.

Consider the timing of initial, extension and switching applications for current and potential employees

Identify relevant employees before November 2020 to allow for applications to be processed under the most beneficial arrangements where appropriate.

Why?

The requirements of the current and new systems are different, and in some cases it may be beneficial to defer planned applications until the new arrangements are in place. Examples of where this may be the case are where resident labour market testing would currently be required for a Tier 2 (General) application but would not for a Skilled worker application, or where switching will be allowed under the new system but not the current one. In other cases it may be necessary or beneficial to go ahead with planned applications under the current system. Failure to identify relevant employees early enough to submit applications in the most beneficial way may result in the individual being unable to continue working in the UK for a period of time, or may delay their future eligibility for settlement.

Need more detailed assistance?

If you are looking to explore the options available to your employees in the new regime, contact a member of our immigration team. We will be able to assist with any necessary applications.

Upskill your HR team on sponsor licence management and the requirements of the new system

Before December 2020 so that they are ready to go in December 2020.

Why?

Delays to new hires and early mistakes in recruitment processes can lead to additional cost and missed compliance duties.

Need more detailed assistance?

Our Sponsoring Workers guidance provides an overview of sponsor licence management and compliance requirements. We are alternatively able to arrange bespoke training for HR teams.

Stay ahead of the curve with changes and updates

Immigration policies normally have at least two major updates per year in April and October, however the pace of change has significantly increased in recent years. Significant adjustments will continue to be necessary as the post-Brexit immigration system is established, so we anticipate frequent updates throughout 2021 and beyond.

Why?

Falling behind on the requirements of hiring and retaining international talent can happen quickly in a constantly changing legal landscape. This can lead to missed opportunities and mistakes that are stressful, costly and time-consuming to deal with.

Need more detailed assistance?

Sign up to our email updates to remain ahead of the curve.

 

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

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

During the course of 2020, many EEA nationals who have been living in the UK have moved abroad due to reasons relating to the COVID-19 pandemic. In important guidance issued by the Home Office on 15 December 2020, the Home Office has confirmed that the normal rules on absences will be applied when assessing eligibility for pre-settlement and settlement under the EU Settlement Scheme (EUSS). What this means is that some EEA nationals will need to return to the UK by 11 pm on 31 December 2020 if they wish to avoid losing their eligibility for pre-settled and/or settled status under the scheme.

Text:

What does the guidance say on continuity of residence?

In the guidance, the Home Office has declined to offer any concessions outside the EUSS Immigration Rules in relation to the COVID-19 pandemic.

As a reminder, only individuals who start a continuous residence period by 11 pm on 31 December 2020 are eligible under EUSS. For settlement under EUSS, a person must have five years’ continuous residence in the UK. This is interpreted by the Home Office to mean that they must have no more than six months’ absence from the UK in any 12-month period across the five years, except for:

• A single period of absence of more than six months, but not more than 12 months for an ‘important reason’ – accepted reasons include pregnancy, childbirth, serious illness, study, vocational training or an overseas posting
• Compulsory military service of any duration
• Posting on Crown service of any duration (or accompanying a person on Crown service as their spouse, civil partner, durable partner or child)
• Working in the UK marine area of any duration

The guidance keeps to this formula, but also introduces a very limited interpretation of when the Home Office will accept that COVID-19 related single absence will be accepted as an ‘important reason’. The interpretation focuses on the accepted reasons of study and illness as follows:

• Being a person studying in the UK, who studied outside the UK because of COVID-19
• Self-isolation under quarantine conditions when ill with COVID-19
• Self-isolation under quarantine conditions when sharing a house with someone ill with COVID-19
• Being required to self-isolate due to being in a vulnerable or high-risk category, or being in contact with someone who is

Practically, aside from students, unless a person has suffered a ‘long COVID’ type illness or has been required to shield for more than six months, it is highly unlikely a person will be able to bring themselves within this interpretation of important reason.

It should be noted that the ‘important reason’ provision:

• Only relates to a single absence – therefore people who have more than six months’ absences in any 12-month period will not be able to avail themselves of the provision if none of their absences exceeded more than six months at any one time
• Can only be used once across the entire five-year period – so anyone relying on this provision for a COVID-19-related reason will need to ensure they have no more than six months absences in any other 12-month period, or this will break the continuity of their residence for settlement

Something that is also not made explicit in the guidance is that cumulative absences of more than six months in any 12-month period will also break a person’s continuity of residence for settlement eligibility under EUSS.

Why is this a problem?

The restrictiveness of the COVID-19 policy will undoubtedly catch some people out.

Examples of situations that would fall outside the policy include where a person:

• has chosen to work remotely during the pandemic, but not on an overseas posting
• has left the UK to be with family abroad
• has left the UK because they feel safer
• has been unable to return to the UK due to flight restrictions or other travel disruption relating to the pandemic

‘Important reason’ is not an exhaustively defined term, and it is possible to argue that any circumstances ought to be recognised as such. However, the Home Office has signalled how it intends to treat COVID-19 related absences and it would take cogent reasons to prompt a departure from their published policy.

What happens if there is no return to the UK by 11 pm on 31 December 2020 for EEA nationals who have broken the continuity of their residence?

For people who already have pre-settled status

There will be no immediate effect on the validity of their pre-settled status provided they do not remain outside the UK for a continuous period of two years or more. However, the break in the continuity of their residence will mean that they will not qualify when they come to apply for settled status. Once their pre-settled status is due to expire, they will either need to leave the UK or apply for further permission to stay in the UK under an alternative immigration category if they qualify for one.

Currently, the Immigration Rules for other categories that lead to settlement do not allow time under EUSS to be counted towards the qualifying period for settlement. Unless the Home Office amends the Rules in the future, what this will mean is that affected individuals will have to start their qualifying period for settlement again from the point they move into another immigration category.

This is a matter we intend to raise with the Home Office. If the Home Office decides not to add EUSS as a category for which time can be counted towards settlement in other immigration routes, then the best course of action for affected individuals may be to switch into alternative immigration routes earlier rather than later if this is feasible and their priority is to achieve settlement as soon as possible.

For people who have not yet applied under the EU Settlement Scheme

Most people who have acquired a right of permanent residence in the UK under EU law will not be affected, unless by the time they apply under the scheme they have been absent from the UK for a continuous period of five years. They must also still ensure they apply by 30 June 2021.

However, for people without a right of permanent residence, the break in the continuity of their residence will mean that if they do not re-enter the UK by 11 pm on 31 December 2020, they will have lost their eligibility under the EUSS altogether. This is because they will no longer be considered to have started a continuous residence period by the required deadline for eligibility under the scheme. 

What can be done to preserve eligibility to apply under the EU Settlement Scheme and to settle under it either immediately or in the future?

We would suggest that all EEA nationals who have been previously resident in the UK without a right of permanent residence under EU law/without settled status under EUSS, but who are currently residing abroad should take the following actions as appropriate:

• Review both their single and cumulative absences from the UK as at the date they intend to return to the UK, including considering whether any one (but only one) period of absence was for an ‘important reason’
• Identify the latest date they can return to the UK without it affecting their eligibility to apply under EUSS if they have not yet applied, or for settlement if they already hold pre-settled status
• If the latest date has already passed, or will pass before 31 December 2020, or they anticipate having absences that would take them above the thresholds during 2021/at any point before they expect to qualify for settled status – return to the UK by 31 December 2020 so they can establish a fresh period of qualifying residence for the purposes of EUSS
• If the latest date has not yet passed but they cannot return to the UK by the date their eligibility for settled status will be affected, still consider making an application under EUSS from abroad before the latest date so that they will have a five-year period of pre-settled status in which to consider their options
• As relevant, closely monitor their future absences to ensure they do not breach the thresholds

Those who acquired a right of permanent residence in the UK should ensure they make an application for settlement under EUSS before they have been absent from the UK for five years, and by 30 June 2021. This application can be made while the person remains abroad.

We appreciate that the above assessments may be complex and that time is short to make them. If you require assistance, please get in touch with your usual Lewis Silkin immigration team contact, or email Immigration.London@lewissilkin.com over the holiday period.

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

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

We are the last few weeks away from the end of the transition period and leaving freedom of movement behind. Although employers will be busy getting to grips with the post-Brexit immigration system, what we are seeing is that they are very concerned about what changes they need to make to their right to work check procedures, and when.

Text:

We know 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. Carrying out a right to work check properly will shield an employer from liability for a civil penalty if they are found to have inadvertently employed somebody who does not have the right to work in the UK. The Home Office has confirmed that right to work check procedures will not change until after 30 June 2021, when the post-transition ‘grace period’ for applying under the EU Settlement Scheme ends. There will be no requirement for retrospective checks on EEA nationals or their family members who start work before this date. However, there is a risk that employers will be prosecuted if they know, or have reasonable cause to believe that they are employing a person unlawfully, despite having conducted a compliant right to work check. This could happen where an EEA national enters the UK for the first time as a visitor after the end of the transition period, or where an existing staff member fails to apply under the EU Settlement Scheme on time.

In our recent webinar on 1 December 2020, we discussed:

• Background and current practice of right to work checks including the move to online checks and changes and concessions due to COVID-19

• The situation with EEA nationals and our recommendations to avoid pitfalls

• Dealing with right to work checks sensitively and employment law issues

• Helpful tips to avoid pitfalls with right to work checks and illegal working

We have also addressed the wide ranging set of questions from attendees, which you can view below or download a pdf version. 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, will continue to be able to rely on their Irish passport for the purposes of right to work checks after 30 June 2021.

We have a Bulgarian national on our payroll who has been furloughed since March. Due to the COVID-19 pandemic and being furloughed she went to Bulgaria to be with her family. She will continue to work for us next year. If she is in Bulgaria on 1 Jan 2021, will she need a visa to continue working for us?

Unfortunately the answer to this question is not straight-forward. If the employee has been outside the UK for more than six months in a 12 month period (which appears may be the case if she left the UK in March 2020 and has not returned), then the continuity of her residence will normally have been broken. There are however exceptions for:

• A single period of absence of up to one year, provided this is for an important reason. Important reasons are not defined exhaustively, but accepted examples include pregnancy, childbirth, serious illness, study, vocational training or an overseas posting.

• Compulsory military training of any length.

The Immigration Minister has recently indicated in a letter to the 3million campaign group that serious illness and being quarantined to protect public health would be accepted as an ‘important reason’. He also stated that guidance will be published shortly for EU Settlement Scheme applicants who have been affected by illness or travel restrictions due to COVID-19. The guidance has not yet been published.

Based on the Immigration Rules and guidance that has been published to-date for individuals with limited leave in other immigration categories and for naturalisation, there is a considerable risk that your employee’s circumstances may not fall within the guidance if she travelled to and has remained in Bulgaria by choice. Irrespective of whether your employee has already obtained pre-settled status under the EU Settlement Scheme (EUSS), the safest course of action would be for her to return to the UK by 31 December 2020 to start a fresh period of residence and to apply (or re-apply) for pre-settled status by 30 June 2021. This would avoid the need for an application to be made under the new immigration system, or for your employee to be ineligible for settled status due to having broken the continuity of her residence. 

We are finding that there is currently a delay on BPRs for new arrivals into the country, meaning that their Entry Clearance visa may expire before we are able to check the person’s BRP. What should we do in this situation, should we use the Employer Checking Service (ECS)?

Yes, you should obtain the employee’s authority to request a verification notice from the ECS and make the ECS request before the expiry of the person’s short-term entry clearance vignette. This will provide you with a statutory excuse against liability for a civil penalty for six months from the date you receive a positive verification notice from the ECS.

I’d like to know whether it is mandatory to take a screenshot of the video call and the person holding up their documents or would is this an optional good to have evidence on top of the check and the printed name with the adjusted sentence, etc?

This is not mandatory, it is a suggestion for good practice.

Does an employer have to do a right to work check on day one if the hire commences from aboard as they are not permitted to travel due to COVID-19? In other words, does the RTW check need to be done only when they are on UK soil?

The UK right to work check should be done before the person commences any work for the employer while they are physically in the UK. In the meantime, if the person starts working for a UK employer remotely from another country, they must have the right to work in the country they are physically located. There may be tax and other considerations if there is remote working abroad, which are discussed in this article.

We are maintaining dialogue, signposting employees to resources ie to apply for settled status etc. Would you recommend a company communication on the immigration changes to include signposting? We have an intranet where we can post things like this but I’m not sure if we should do a wider one.

We would suggest using multiple channels to raise awareness of the changes. You could post information on your intranet, put information on company screensavers and also send out a company communication via email. We would also suggest that awareness is raised with your UK staff, and your staff in any offices abroad, in particular in the EEA or Switzerland.

The wider the communication is, the more your staff will have an opportunity to take action. There are some people who have left the UK within the last five years who may not know they are eligible to apply for settled status, and who could currently be living anywhere in the world. There are also people who, in addition to having rights under free movement law, also have UK immigration permission and are not aware that they can apply under the EUSS.

A recent report by the Migration Observatory at the University of Oxford cites lack of awareness as being a key concern for the ability of EEA/Swiss nationals and their family members to secure their UK residence rights. Any efforts that employers can make to address this are likely to make the affected employees feel valued and will reduce the risk that they may lose their rights.

We would advise that you seek legal advice in this scenario. There are some employment law risks in automatically dismissing and/or suspending an employee who you suspect may not have the right to work in the UK. Remember that there is a difference between actually not having the right to work in the UK and not being able to prove the right to work in the UK. In many cases they are one and the same, but not always.

• There is the risk of an unfair dismissal claim. Employees with more than two years’ service have the right not to be unfairly dismissed. This means that you must identify a potentially fair reason for dismissal, as well as follow a fair process. “Illegality” is a potentially fair reason for dismissal, which would apply if somebody definitely does not have the right to work. However, you must still follow a fair process. Further, if they did happen to have the right to work all along, you will not be able to rely on illegality as the reason for dismissal (although you may be able to rely on “some other substantial reason” if you genuinely believe they do not have the right to work). Key to the fairness of the dismissal will be the process that you follow – you must conduct an investigation into the matter and come to your own, informed conclusion, including by speaking to the employee and using the Employer Checking Service. You must also ensure that the reason for dismissal stated in the termination letter is very carefully articulated. If you dismiss unfairly (for example, by failing to do a full and proper investigation before arriving at your conclusion), the employee may potentially bring a successful claim for unfair dismissal. 

• There is also the risk of a wrongful dismissal claim – i.e. a claim for notice pay. If you dismiss without notice on the basis that the employee did not have the right to work, but they did have the right to work all along, the employee could bring a claim for their notice pay.  [It is also arguable that the employee is entitled to notice pay anyway unless they have tried to conceal the fact they do not have proof of right to work].

• There is also the risk of a race discrimination claim. The employee could claim that you are treating them less favourably than you would (for example) a British employee, or they could complain that the way that you handle the situation amounts to harassment.  It is important to make sure you treat all employees who need to show proof of right to work in the same way.

Suspension is unlikely to be of much assistance. The employee would remain employed while suspended, so the risk of continuing to employ an illegal worker would not be avoided by simply suspending them. Suspension is generally only appropriate where there is a reason why the employee should not be in the workplace (e.g. due to serious misconduct). Any suspension would also need to be paid, unless the contract allows for suspension without pay.

Yes, however we would suggest a staged approach. See question 17 for further details.

We have nationality/citizenship data in our HRIS system.  Does that enable us to send out targeted communications?

We would suggest not relying on nationality/citizenship data in isolation as this can be incomplete or otherwise prone to error.

If we recruit a new starter (EEA/Swiss citizen) after 1 January 2021 and they haven’t been living in the UK by 31 December 2020, can you clarify whether we can still rely on their EEA passport until the end of the grace period or do the new January immigration rules apply?

You can rely on their EEA passport for the purpose of a right to work check, however an EEA or Swiss national who enters the UK for the first time after 11 pm on 31 December 2020 may not in fact have a right to work unless one of the following applies:

• They have an EUSS family permit

• They have the right to work granted under the UK Immigration Rules

• They are exempt from immigration control, e.g. as the family member of a diplomat

The Government’s current position on right to work checks carries the risk that some people will be employed unlawfully. Although further guidance is expected to be forthcoming, no specific date has been confirmed for when this will be released.

Do we need to do a retrospective RTW check on all our EEA national employees after 1 July 2021? Or just those who join between 1 Jan and 30 June? 

A retrospective right to work check is not required for any employee whose work commences on or before 30 June 2021.

When hiring an EEA national from 1 Jan 2021 can/should we ask them to show they entered the UK by 31 Dec 2020? 

Unfortunately this will not provide an accurate indication of the person’s right to work. For examples of where an EEA or Swiss national may have a right to work despite not having entered the UK by 11 pm on 31 December 2020, see the response to question 9.

Can we engage freelancers based in the EU from Jan onwards? 

See response to question 4.

Re dismissal – In 2018/2019 The Home Office refused ILR applications on the basis of incorrect tax returns. Many months later, the Home Office admitted that they had made a mistake and these applications shouldn’t have been refused. Where does an employer stand in this situation?

This would depend on the facts of the case in question. In the absence of more detail we cannot give a definitive answer. We recommend that you seek legal advice in such cases.
See the response to question 6 for some of the employment law risks in dismissing employees on the basis that an employee cannot prove that they have the right to work. It may be possible to defend an unfair dismissal claim in the event of a genuine but mistaken belief that an employee did not have the right to work in the UK. However, that will depend on the facts of the case in question. In many cases, the quality of the employer’s investigation into the employee’s immigration status will be critical in determining the fairness of a decision to dismiss. The Home Office does, unfortunately, make mistakes. But an employer seeking to justify its decision to dismiss will want to show that it conducted its own investigation into the matter and reached a fully informed conclusion.

This is a thorny and complex area. We would strongly advise that you seek tailored legal advice, because the answer will depend on how you phrase the question and what you do with the information provided.

It is possible – in some circumstances – to ask candidates if they have the right to work in the UK during the recruitment process. However, there is a risk of race discrimination. If the question is benign, sensitively phrased, asked of all candidates and appropriately processed, then the risk is more limited. But, employers have been found to be liable for race discrimination for using a negative answer to ‘sift’ candidates, or where a candidate’s inability to prove they have the right to work in the UK formed part of the decision to reject their application. An employment tribunal will be concerned with whether candidates are rejected on merit, or whether they were rejected because of their immigration status. 

Employment case law in this area suggests that not currently holding a sponsor licence is not a good enough reason in and of itself to refuse to employ a candidate without the right to work in the UK. See the answer to question 14 above for some of the risks involved in asking about candidates’ right to work.

Case law states that a decision to reject an application on the basis that the candidate does not have the right to work may well be discriminatory, and this means that a decision to reject on the basis that the employer does not currently hold a sponsor licence may also be discriminatory. The safest approach is to do a full merits assessment of the candidates, and only at the end of the process to decide whether or not you wish to try to sponsor a candidate. The key is to select (and be seen to select) employees only based on their suitability for the role on offer. The approach of using nationality (or right to work in the UK) as a determinative factor does open the door to a race discrimination claim. Note that a failure to observe the Home Office’s code of practice may be taken into account by a tribunal in deciding whether there has been discrimination.

Please do contact us for advice if you are considering adopting such policies or practices. 

See the answers to questions 14 and 15 above. A suggestion that employees will automatically be rejected for sponsorship-related reasons may be found to be discriminatory. Of course, some roles may not be eligible for sponsorship under the UK’s points-based immigration system; but pre-emptively advertising this fact in the job advert may create an unnecessary degree of legal risk. The approach suggested by the employment case law is that you should make your decision based on merit, and only at the end of the process should you consider whether sponsorship is possible.

If we are not required to do retrospective right to work checks for EEA citizens to verify whether they have Settled Status or not, from 1 July 2021, how do we know if an employee has the right to work?

Although you are not required to do a retrospective right to work check, we would suggest that you follow a staged approach:

• Before the end of the transition period: Send company-wide communications flagging that free movement is coming to an end from 11 pm on 31 December 2020, and raising awareness of the EU Settlement Scheme, including the deadline to apply. Follow-up firm-wide communications could also be sent around the end of March 2021.

Then, for employees who have relied on an EEA/Swiss passport or national ID card (other than Irish nationals), and family members whose right to work document has been issued based on EU law residence rights:  

• Between the end of April 2021 and 30 June 2021: Invite (but do not require) affected employees to provide proof of their right to work under the EU Settlement Scheme, otherwise under the Immigration Rules, or as an exempt person, eg a frontier worker.

• On or immediately after 1 July 2021, and subject to further guidance being issued by the Home Office: Request proof of right to work as above, or of having made an application under the EU Settlement Scheme before 1 July 2021.
  

See the answers to questions 14 to 16 above. A decision to reject candidates outright on the basis of immigration status may well be discriminatory. However, please do contact us if you would like a more detailed discussion about how to navigate these issues. 

If you have any queries on the above or any other matter, please contact a member of the immigration team or employment team.

 

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

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

On 10 December 2020, the UK opened up a process for EEA nationals to apply for a frontier worker permit. This will allow some cross-border commuters who work in the UK but live abroad to continue their working pattern after the end of the Brexit transition period.

Text:

The frontier worker permit will help EEA nationals who occasionally work in the UK. For instance, non-Irish EEA citizens who live in the Republic of Ireland and occasionally work in Northern Ireland, or a French national who travels to work in London on a frequent basis. However, assessing eligibility for a frontier worker permit may not be straightforward and in many cases a frontier worker may be better placed to apply under the EU Settlement Scheme. It is therefore necessary to assess the best option for frontier workers on a case-by-case basis. If they do apply for a frontier worker permit, they will need to be informed about what the requirements are to maintain and renew their permit.

What is the definition of a frontier worker?

A frontier worker is an EEA national who starts work in the UK by 11 pm on 31 December 2020 (the end of the Brexit transition period) but who is primarily resident outside the UK. The work in the UK can either be on an employed or self-employed basis.

An Irish national who is a frontier worker can continue to work in the UK without any restrictions after the end of the Brexit transition period so will not need to apply for a frontier worker permit, however they can choose to if they wish.

Frontier worker status can be retained where a person has stopped working temporarily. For example:

• An EEA national who has been working in the UK for a year or more but is temporarily unable to work as a result of involuntary unemployment will retain their frontier worker status for six months, or longer if they can show compelling evidence of continuing to seek work in the UK. 
• An EEA national who has become involuntarily unemployed after working in the UK for less than a year will retain their status for six months only.
• There are also provisions for an EEA national to retain their worker status in certain circumstances if they have temporarily stopped work due to illness, accident, pregnancy or childbirth, or they have taken up vocational training. 

The requirements for retaining frontier worker status are complex and we would recommend seeking specific advice on the provisions as necessary. 

How much time should a frontier worker spend in the UK?

Frontier workers must not be primarily resident in the UK, i.e. their main residence and home must be elsewhere, but not necessarily in the EEA. Under EU law, frontier workers are expected to return to their home country ‘at least once a week’. The UK has decided to adopt a more liberal definition of being ‘not primarily resident’ under the Citizens’ Rights (Frontier Workers) (EU Exit) Regulations 2020. According to the Regulations, an EEA national who falls under one of the following categories is not ‘primarily resident in the UK’: 

• An EEA national who has been in the UK for less than 180 days in the last twelve-month period; or 
• An EEA national who has returned to their country of residence at least once in the last six-month period, or twice in the last twelve-month period. 

An EEA national who spends the majority of their time in the UK can still benefit from frontier working provisions, as long as they comply with the second of the two requirements above. However, it is important to note that a frontier worker permit will not lead to settlement, but it can be extended on multiple occasions. 
EEA nationals wishing to settle in the UK permanently should ensure they apply by 30 June 2021 for pre-settled status under the EU Settlement Scheme rather than using this route.

It may also be possible for a person who spends very little time in the UK working to be classed as a frontier worker. What will be key is whether their activities in the UK amount to ‘work’. The provisions state that an EEA national must carry out work in the UK that is ‘genuine and effective’ rather than ‘marginal and ancillary’. This means that work carried out in the UK must not involve so little time and money that it is not relevant to the lifestyle of the EEA national while they are in the UK. For example, an interview or one-off business meeting will not be considered genuine and effective work.

An EEA national will need to produce evidence of their work in the UK to prove that they are genuinely a frontier worker. The Home Office has published guidance on this, as well as on the considerations that will apply if an EEA national’s ability to travel to the UK and/or to work in the UK has been affected by the COVID-19 pandemic. 

Frontier workers after 31 December 2020

An EEA national who meets the criteria above will be able to continue to travel to and work in the UK until 30 June 2021 using their current original passport or national ID card. From 1 July 2021, in addition to their identity document, an EEA national must hold a (digital) frontier worker permit in order to enter the UK on that basis. 

The requirement to obtain a frontier worker permit by 1 July 2021 is a very short timeframe considering that the route has not been widely publicised and the guidance on the application process has not been made available ahead of its launch. Due to lack of publicity, some EEA nationals will not be aware of this route and that it may apply to them or be able to put arrangements in place to bring themselves within scope of the arrangements before the end of the transition period.

Application process

The application process for a frontier worker permit launched on 10 December 2020. There is no deadline for applications, so it will be possible for a person who holds pre-settled status under the EU Settlement Scheme to obtain a frontier worker permit some years from now if they meet the eligibility requirements for it. This could be an option for those who are unable to meet the residence requirements for settled status in due course, but who continue to work in the UK. 

Frontier worker applications are free of charge and can be submitted in or outside the UK. An applicant will need to provide evidence of their identity and frontier worker status, i.e. relevant documentation regarding their employment or self-employment (e.g. a letter from a UK employer, payslips, proof of business in the UK etc.) and evidence of their returns to their home country. It may be tricky for EEA nationals to evidence the latter, considering that they will not have any stamps in their passports. Individuals may need to keep their flight booking confirmations and boarding passes to evidence travel to their home country. 

If the application is successful, a frontier worker will be given a permit valid for five years, or two years if they have applied on the basis of retained frontier worker status. One of the conditions is that the holder must continue at all times to fall within the definition of a frontier worker. Otherwise, their frontier worker permit may be revoked, and they may be refused admission or removed from the UK. 

The Home Office has confirmed that a frontier worker will be allowed to make an application to switch to other immigration categories while they are in the UK, provided they meet eligibility requirements of the category they wish to switch into. 

If an EEA national holds frontier worker status but wishes to travel to the UK for a purpose other than work (for example, a recreational visit) they will be admitted to the UK as a visitor under general immigration rules, and not as a frontier worker. This is something that is different from the rules that apply to other exempt categories, and it remains to be seen how the Home Office will manage this aspect operationally as most EEA nationals will simply be seeking entry to the UK via eGates rather than being asked any questions at the border about their intended activities in the UK.

If you have any queries about this route or would like further information about applying, please contact a member of the immigration team.

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

Author(s)/Speaker(s): Joanna Hunt, Parvin Iman, Kathryn Denyer,

On 10 December 2020, the UK opened up a process for EEA nationals to apply for a frontier worker permit. This will allow some cross-border commuters who work in the UK but live abroad to continue their working pattern after the end of the Brexit transition period.

Text:

The frontier worker permit will help EEA nationals who occasionally work in the UK. For instance, non-Irish EEA citizens who live in the Republic of Ireland and occasionally work in Northern Ireland, or a French national who travels to work in London on a frequent basis. However, assessing eligibility for a frontier worker permit may not be straightforward and in many cases a frontier worker may be better placed to apply under the EU Settlement Scheme. It is therefore necessary to assess the best option for frontier workers on a case-by-case basis. If they do apply for a frontier worker permit, they will need to be informed about what the requirements are to maintain and renew their permit.

What is the definition of a frontier worker?

A frontier worker is an EEA national who starts work in the UK by 11 pm on 31 December 2020 (the end of the Brexit transition period) but who is primarily resident outside the UK. The work in the UK can either be on an employed or self-employed basis.

An Irish national who is a frontier worker can continue to work in the UK without any restrictions after the end of the Brexit transition period so will not need to apply for a frontier worker permit, however they can choose to if they wish.

Frontier worker status can be retained where a person has stopped working temporarily. For example:

• An EEA national who has been working in the UK for a year or more but is temporarily unable to work as a result of involuntary unemployment will retain their frontier worker status for six months, or longer if they can show compelling evidence of continuing to seek work in the UK. 
• An EEA national who has become involuntarily unemployed after working in the UK for less than a year will retain their status for six months only.
• There are also provisions for an EEA national to retain their worker status in certain circumstances if they have temporarily stopped work due to illness, accident, pregnancy or childbirth, or they have taken up vocational training. 

The requirements for retaining frontier worker status are complex and we would recommend seeking specific advice on the provisions as necessary. 

How much time should a frontier worker spend in the UK?

Frontier workers must not be primarily resident in the UK, i.e. their main residence and home must be elsewhere, but not necessarily in the EEA. Under EU law, frontier workers are expected to return to their home country ‘at least once a week’. The UK has decided to adopt a more liberal definition of being ‘not primarily resident’ under the Citizens’ Rights (Frontier Workers) (EU Exit) Regulations 2020. According to the Regulations, an EEA national who falls under one of the following categories is not ‘primarily resident in the UK’: 

• An EEA national who has been in the UK for less than 180 days in the last twelve-month period; or 
• An EEA national who has returned to their country of residence at least once in the last six-month period, or twice in the last twelve-month period. 

An EEA national who spends the majority of their time in the UK can still benefit from frontier working provisions, as long as they comply with the second of the two requirements above. However, it is important to note that a frontier worker permit will not lead to settlement, but it can be extended on multiple occasions. 
EEA nationals wishing to settle in the UK permanently should ensure they apply by 30 June 2021 for pre-settled status under the EU Settlement Scheme rather than using this route.

It may also be possible for a person who spends very little time in the UK working to be classed as a frontier worker. What will be key is whether their activities in the UK amount to ‘work’. The provisions state that an EEA national must carry out work in the UK that is ‘genuine and effective’ rather than ‘marginal and ancillary’. This means that work carried out in the UK must not involve so little time and money that it is not relevant to the lifestyle of the EEA national while they are in the UK. For example, an interview or one-off business meeting will not be considered genuine and effective work.

An EEA national will need to produce evidence of their work in the UK to prove that they are genuinely a frontier worker. The Home Office has published guidance on this, as well as on the considerations that will apply if an EEA national’s ability to travel to the UK and/or to work in the UK has been affected by the COVID-19 pandemic. 

Frontier workers after 31 December 2020

An EEA national who meets the criteria above will be able to continue to travel to and work in the UK until 30 June 2021 using their current original passport or national ID card. From 1 July 2021, in addition to their identity document, an EEA national must hold a (digital) frontier worker permit in order to enter the UK on that basis. 

The requirement to obtain a frontier worker permit by 1 July 2021 is a very short timeframe considering that the route has not been widely publicised and the guidance on the application process has not been made available ahead of its launch. Due to lack of publicity, some EEA nationals will not be aware of this route and that it may apply to them or be able to put arrangements in place to bring themselves within scope of the arrangements before the end of the transition period.

Application process

The application process for a frontier worker permit launched on 10 December 2020. There is no deadline for applications, so it will be possible for a person who holds pre-settled status under the EU Settlement Scheme to obtain a frontier worker permit some years from now if they meet the eligibility requirements for it. This could be an option for those who are unable to meet the residence requirements for settled status in due course, but who continue to work in the UK. 

Frontier worker applications are free of charge and can be submitted in or outside the UK. An applicant will need to provide evidence of their identity and frontier worker status, i.e. relevant documentation regarding their employment or self-employment (e.g. a letter from a UK employer, payslips, proof of business in the UK etc.) and evidence of their returns to their home country. It may be tricky for EEA nationals to evidence the latter, considering that they will not have any stamps in their passports. Individuals may need to keep their flight booking confirmations and boarding passes to evidence travel to their home country. 

If the application is successful, a frontier worker will be given a permit valid for five years, or two years if they have applied on the basis of retained frontier worker status. One of the conditions is that the holder must continue at all times to fall within the definition of a frontier worker. Otherwise, their frontier worker permit may be revoked, and they may be refused admission or removed from the UK. 

The Home Office has confirmed that a frontier worker will be allowed to make an application to switch to other immigration categories while they are in the UK, provided they meet eligibility requirements of the category they wish to switch into. 

If an EEA national holds frontier worker status but wishes to travel to the UK for a purpose other than work (for example, a recreational visit) they will be admitted to the UK as a visitor under general immigration rules, and not as a frontier worker. This is something that is different from the rules that apply to other exempt categories, and it remains to be seen how the Home Office will manage this aspect operationally as most EEA nationals will simply be seeking entry to the UK via eGates rather than being asked any questions at the border about their intended activities in the UK.

If you have any queries about this route or would like further information about applying, please contact a member of the immigration team.

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

Author(s)/Speaker(s): Joanna Hunt, Parvin Iman, Kathryn Denyer,

We are the last few weeks away from the end of the transition period and leaving freedom of movement behind. Although employers will be busy getting to grips with the post-Brexit immigration system, what we are seeing is that they are very concerned about what changes they need to make to their right to work check procedures, and when.

Text:

We know 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. Carrying out a right to work check properly will shield an employer from liability for a civil penalty if they are found to have inadvertently employed somebody who does not have the right to work in the UK. The Home Office has confirmed that right to work check procedures will not change until after 30 June 2021, when the post-transition ‘grace period’ for applying under the EU Settlement Scheme ends. There will be no requirement for retrospective checks on EEA nationals or their family members who start work before this date. However, there is a risk that employers will be prosecuted if they know, or have reasonable cause to believe that they are employing a person unlawfully, despite having conducted a compliant right to work check. This could happen where an EEA national enters the UK for the first time as a visitor after the end of the transition period, or where an existing staff member fails to apply under the EU Settlement Scheme on time.

In our recent webinar on 1 December 2020, we discussed:

• Background and current practice of right to work checks including the move to online checks and changes and concessions due to COVID-19

• The situation with EEA nationals and our recommendations to avoid pitfalls

• Dealing with right to work checks sensitively and employment law issues

• Helpful tips to avoid pitfalls with right to work checks and illegal working

We have also addressed the wide ranging set of questions from attendees, which you can view below or download a pdf version. 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, will continue to be able to rely on their Irish passport for the purposes of right to work checks after 30 June 2021.

We have a Bulgarian national on our payroll who has been furloughed since March. Due to the COVID-19 pandemic and being furloughed she went to Bulgaria to be with her family. She will continue to work for us next year. If she is in Bulgaria on 1 Jan 2021, will she need a visa to continue working for us?

Unfortunately the answer to this question is not straight-forward. If the employee has been outside the UK for more than six months in a 12 month period (which appears may be the case if she left the UK in March 2020 and has not returned), then the continuity of her residence will normally have been broken. There are however exceptions for:

• A single period of absence of up to one year, provided this is for an important reason. Important reasons are not defined exhaustively, but accepted examples include pregnancy, childbirth, serious illness, study, vocational training or an overseas posting.

• Compulsory military training of any length.

The Immigration Minister has recently indicated in a letter to the 3million campaign group that serious illness and being quarantined to protect public health would be accepted as an ‘important reason’. He also stated that guidance will be published shortly for EU Settlement Scheme applicants who have been affected by illness or travel restrictions due to COVID-19. The guidance has not yet been published.

Based on the Immigration Rules and guidance that has been published to-date for individuals with limited leave in other immigration categories and for naturalisation, there is a considerable risk that your employee’s circumstances may not fall within the guidance if she travelled to and has remained in Bulgaria by choice. Irrespective of whether your employee has already obtained pre-settled status under the EU Settlement Scheme (EUSS), the safest course of action would be for her to return to the UK by 31 December 2020 to start a fresh period of residence and to apply (or re-apply) for pre-settled status by 30 June 2021. This would avoid the need for an application to be made under the new immigration system, or for your employee to be ineligible for settled status due to having broken the continuity of her residence. 

We are finding that there is currently a delay on BPRs for new arrivals into the country, meaning that their Entry Clearance visa may expire before we are able to check the person’s BRP. What should we do in this situation, should we use the Employer Checking Service (ECS)?

Yes, you should obtain the employee’s authority to request a verification notice from the ECS and make the ECS request before the expiry of the person’s short-term entry clearance vignette. This will provide you with a statutory excuse against liability for a civil penalty for six months from the date you receive a positive verification notice from the ECS.

I’d like to know whether it is mandatory to take a screenshot of the video call and the person holding up their documents or would is this an optional good to have evidence on top of the check and the printed name with the adjusted sentence, etc?

This is not mandatory, it is a suggestion for good practice.

Does an employer have to do a right to work check on day one if the hire commences from aboard as they are not permitted to travel due to COVID-19? In other words, does the RTW check need to be done only when they are on UK soil?

The UK right to work check should be done before the person commences any work for the employer while they are physically in the UK. In the meantime, if the person starts working for a UK employer remotely from another country, they must have the right to work in the country they are physically located. There may be tax and other considerations if there is remote working abroad, which are discussed in this article.

We are maintaining dialogue, signposting employees to resources ie to apply for settled status etc. Would you recommend a company communication on the immigration changes to include signposting? We have an intranet where we can post things like this but I’m not sure if we should do a wider one.

We would suggest using multiple channels to raise awareness of the changes. You could post information on your intranet, put information on company screensavers and also send out a company communication via email. We would also suggest that awareness is raised with your UK staff, and your staff in any offices abroad, in particular in the EEA or Switzerland.

The wider the communication is, the more your staff will have an opportunity to take action. There are some people who have left the UK within the last five years who may not know they are eligible to apply for settled status, and who could currently be living anywhere in the world. There are also people who, in addition to having rights under free movement law, also have UK immigration permission and are not aware that they can apply under the EUSS.

A recent report by the Migration Observatory at the University of Oxford cites lack of awareness as being a key concern for the ability of EEA/Swiss nationals and their family members to secure their UK residence rights. Any efforts that employers can make to address this are likely to make the affected employees feel valued and will reduce the risk that they may lose their rights.

We would advise that you seek legal advice in this scenario. There are some employment law risks in automatically dismissing and/or suspending an employee who you suspect may not have the right to work in the UK. Remember that there is a difference between actually not having the right to work in the UK and not being able to prove the right to work in the UK. In many cases they are one and the same, but not always.

• There is the risk of an unfair dismissal claim. Employees with more than two years’ service have the right not to be unfairly dismissed. This means that you must identify a potentially fair reason for dismissal, as well as follow a fair process. “Illegality” is a potentially fair reason for dismissal, which would apply if somebody definitely does not have the right to work. However, you must still follow a fair process. Further, if they did happen to have the right to work all along, you will not be able to rely on illegality as the reason for dismissal (although you may be able to rely on “some other substantial reason” if you genuinely believe they do not have the right to work). Key to the fairness of the dismissal will be the process that you follow – you must conduct an investigation into the matter and come to your own, informed conclusion, including by speaking to the employee and using the Employer Checking Service. You must also ensure that the reason for dismissal stated in the termination letter is very carefully articulated. If you dismiss unfairly (for example, by failing to do a full and proper investigation before arriving at your conclusion), the employee may potentially bring a successful claim for unfair dismissal. 

• There is also the risk of a wrongful dismissal claim – i.e. a claim for notice pay. If you dismiss without notice on the basis that the employee did not have the right to work, but they did have the right to work all along, the employee could bring a claim for their notice pay.  [It is also arguable that the employee is entitled to notice pay anyway unless they have tried to conceal the fact they do not have proof of right to work].

• There is also the risk of a race discrimination claim. The employee could claim that you are treating them less favourably than you would (for example) a British employee, or they could complain that the way that you handle the situation amounts to harassment.  It is important to make sure you treat all employees who need to show proof of right to work in the same way.

Suspension is unlikely to be of much assistance. The employee would remain employed while suspended, so the risk of continuing to employ an illegal worker would not be avoided by simply suspending them. Suspension is generally only appropriate where there is a reason why the employee should not be in the workplace (e.g. due to serious misconduct). Any suspension would also need to be paid, unless the contract allows for suspension without pay.

Yes, however we would suggest a staged approach. See question 17 for further details.

We have nationality/citizenship data in our HRIS system.  Does that enable us to send out targeted communications?

We would suggest not relying on nationality/citizenship data in isolation as this can be incomplete or otherwise prone to error.

If we recruit a new starter (EEA/Swiss citizen) after 1 January 2021 and they haven’t been living in the UK by 31 December 2020, can you clarify whether we can still rely on their EEA passport until the end of the grace period or do the new January immigration rules apply?

You can rely on their EEA passport for the purpose of a right to work check, however an EEA or Swiss national who enters the UK for the first time after 11 pm on 31 December 2020 may not in fact have a right to work unless one of the following applies:

• They have an EUSS family permit

• They have the right to work granted under the UK Immigration Rules

• They are exempt from immigration control, e.g. as the family member of a diplomat

The Government’s current position on right to work checks carries the risk that some people will be employed unlawfully. Although further guidance is expected to be forthcoming, no specific date has been confirmed for when this will be released.

Do we need to do a retrospective RTW check on all our EEA national employees after 1 July 2021? Or just those who join between 1 Jan and 30 June? 

A retrospective right to work check is not required for any employee whose work commences on or before 30 June 2021.

When hiring an EEA national from 1 Jan 2021 can/should we ask them to show they entered the UK by 31 Dec 2020? 

Unfortunately this will not provide an accurate indication of the person’s right to work. For examples of where an EEA or Swiss national may have a right to work despite not having entered the UK by 11 pm on 31 December 2020, see the response to question 9.

Can we engage freelancers based in the EU from Jan onwards? 

See response to question 4.

Re dismissal – In 2018/2019 The Home Office refused ILR applications on the basis of incorrect tax returns. Many months later, the Home Office admitted that they had made a mistake and these applications shouldn’t have been refused. Where does an employer stand in this situation?

This would depend on the facts of the case in question. In the absence of more detail we cannot give a definitive answer. We recommend that you seek legal advice in such cases.
See the response to question 6 for some of the employment law risks in dismissing employees on the basis that an employee cannot prove that they have the right to work. It may be possible to defend an unfair dismissal claim in the event of a genuine but mistaken belief that an employee did not have the right to work in the UK. However, that will depend on the facts of the case in question. In many cases, the quality of the employer’s investigation into the employee’s immigration status will be critical in determining the fairness of a decision to dismiss. The Home Office does, unfortunately, make mistakes. But an employer seeking to justify its decision to dismiss will want to show that it conducted its own investigation into the matter and reached a fully informed conclusion.

This is a thorny and complex area. We would strongly advise that you seek tailored legal advice, because the answer will depend on how you phrase the question and what you do with the information provided.

It is possible – in some circumstances – to ask candidates if they have the right to work in the UK during the recruitment process. However, there is a risk of race discrimination. If the question is benign, sensitively phrased, asked of all candidates and appropriately processed, then the risk is more limited. But, employers have been found to be liable for race discrimination for using a negative answer to ‘sift’ candidates, or where a candidate’s inability to prove they have the right to work in the UK formed part of the decision to reject their application. An employment tribunal will be concerned with whether candidates are rejected on merit, or whether they were rejected because of their immigration status. 

Employment case law in this area suggests that not currently holding a sponsor licence is not a good enough reason in and of itself to refuse to employ a candidate without the right to work in the UK. See the answer to question 14 above for some of the risks involved in asking about candidates’ right to work.

Case law states that a decision to reject an application on the basis that the candidate does not have the right to work may well be discriminatory, and this means that a decision to reject on the basis that the employer does not currently hold a sponsor licence may also be discriminatory. The safest approach is to do a full merits assessment of the candidates, and only at the end of the process to decide whether or not you wish to try to sponsor a candidate. The key is to select (and be seen to select) employees only based on their suitability for the role on offer. The approach of using nationality (or right to work in the UK) as a determinative factor does open the door to a race discrimination claim. Note that a failure to observe the Home Office’s code of practice may be taken into account by a tribunal in deciding whether there has been discrimination.

Please do contact us for advice if you are considering adopting such policies or practices. 

See the answers to questions 14 and 15 above. A suggestion that employees will automatically be rejected for sponsorship-related reasons may be found to be discriminatory. Of course, some roles may not be eligible for sponsorship under the UK’s points-based immigration system; but pre-emptively advertising this fact in the job advert may create an unnecessary degree of legal risk. The approach suggested by the employment case law is that you should make your decision based on merit, and only at the end of the process should you consider whether sponsorship is possible.

If we are not required to do retrospective right to work checks for EEA citizens to verify whether they have Settled Status or not, from 1 July 2021, how do we know if an employee has the right to work?

Although you are not required to do a retrospective right to work check, we would suggest that you follow a staged approach:

• Before the end of the transition period: Send company-wide communications flagging that free movement is coming to an end from 11 pm on 31 December 2020, and raising awareness of the EU Settlement Scheme, including the deadline to apply. Follow-up firm-wide communications could also be sent around the end of March 2021.

Then, for employees who have relied on an EEA/Swiss passport or national ID card (other than Irish nationals), and family members whose right to work document has been issued based on EU law residence rights:  

• Between the end of April 2021 and 30 June 2021: Invite (but do not require) affected employees to provide proof of their right to work under the EU Settlement Scheme, otherwise under the Immigration Rules, or as an exempt person, eg a frontier worker.

• On or immediately after 1 July 2021, and subject to further guidance being issued by the Home Office: Request proof of right to work as above, or of having made an application under the EU Settlement Scheme before 1 July 2021.
  

See the answers to questions 14 to 16 above. A decision to reject candidates outright on the basis of immigration status may well be discriminatory. However, please do contact us if you would like a more detailed discussion about how to navigate these issues. 

If you have any queries on the above or any other matter, please contact a member of the immigration team or employment team.

 

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

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

Despite the lingering global economic slowdown, the Philippine economy has outperformed most of its ASEAN neighbours.

Text:

This in-brief provides a snapshot of some of the key aspects of employment law in the Philippines.

Our Hong Kong office was opened to meet a growing demand from many of our clients for coordinated employment and immigration/global mobility support across the Asia Pacific region (including the Philippines).

This publication provides general guidance only: expert advice should be sought in relation to particular circumstances. Our Hong Kong office can source Philippine advice through its links with local firms in the Philippines.

Type: Inbrief

Author(s)/Speaker(s): Kathryn Weaver, Catherine Leung,

Attachment: Lewis Silkin Inbrief – Employment law in the Philippines – an overview