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.

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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.

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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.

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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.

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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.

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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

Despite the economic slowdown in Australia over the last few years, real GDP has grown by 3.1% year on year and is expected to remain stable at this mark for the remainder of 2016 and 2017.

Text:

Having narrowly avoided recession over recent years, it has remained a stable environment in which to do business.

This inbrief provides a snapshot of some of the key aspects of employment law in Australia. 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 Australia). This publication provides general guidance only: expert advice should be sought in relation to particular circumstances. Our Hong Kong office can source Australian advice through its links with local firms in Australia.

Type: Inbrief

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

Attachment: Lewis Silkin Inbrief – Employment law in Australia – an overview

Despite the economic slowdown in Australia over the last few years, real GDP has grown by 3.1% year on year and is expected to remain stable at this mark for the remainder of 2016 and 2017.

Text:

Having narrowly avoided recession over recent years, it has remained a stable environment in which to do business.

This inbrief provides a snapshot of some of the key aspects of employment law in Australia. 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 Australia). This publication provides general guidance only: expert advice should be sought in relation to particular circumstances. Our Hong Kong office can source Australian advice through its links with local firms in Australia.

Type: Inbrief

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

Attachment: Lewis Silkin Inbrief – Employment law in Australia – an overview

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