On 10 September 2020 the Home Office published new Immigration Rules for students. These provide the first glimpse of the new Points Based Immigration System (PBIS), and what some of its implications will be not only for students, but for employers and workers as well.

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Statement of Changes in Immigration Rules HC 707 introduces new Student and Child Student routes. These come into effect at 9 am on 5 October 2020 for non-EEA nationals and EEA nationals making applications from abroad, although EEA nationals will have their entry clearance issued starting from 1 January 2021 at the earliest.

EEA nationals who are already in the UK will not be able to apply until 1 January 2021. This is because EEA nationals who arrive in the UK before 11 pm on 31 December 2020 will still be covered by the Brexit transition period and will be eligible to apply under the EU Settlement Scheme. Those who come to the UK as a visitor will not be allowed to switch their immigration status to a student route in-country. They will have to depart the UK and apply for entry clearance.

Benefits of the new Rules for international students and employers

Under the new Rules there will no longer be an eight-year time limit on postgraduate studies. This means employers will have a greater chance of being able to hire more highly skilled workers in the UK after they have completed their full programme of studies.

When combined with the proposed two-year graduate visa, international students will now have a clearer route to settlement following ten years’ continuous residence in the UK, which means a lower proportion will require sponsorship by an employer. This will provide some administrative and cost savings.

Due to the promised abolition of the resident labour market test under the new Skilled Worker route (which will replace Tier 2 (General)), it will be a more streamlined process to sponsor an international student in circumstances where they have not completed their course in the UK (or have not completed at least 12 months of their course in the case of PhD students).

In some cases, international students may be considered ‘new entrants’ to the labour market, and so may be paid a minimum of 70 percent of the relevant going rate for the occupation they are sponsored to fill as Skilled Worker. This will enable sponsorship to be possible a pay level that is in line with market expectations for those who are at the beginning of their career.

Tips for employers intending to sponsor workers under the new system

The new Rules for students provide some clues about how some aspects of the PBIS will work for employers, and therefore what they need to be on top of. 

Tip 1: Review immigration and nationality considerations for EEA nationals and their family members as soon as possible

The general position is that the EU Settlement Scheme is a much cheaper, more flexible option for EEA nationals and their family members. Entering the UK by 31 December 2020 and applying under this route rather than entering next year under the UK’s domestic immigration system will in most cases be advantageous both for individuals and employers.

Employers should therefore consider bringing start dates forward into 2020, or ensure EEA nationals at least enter the UK by 31 December 2020 so that they and their family members are eligible to apply under EUSS. Potential travel disruptions and self-isolation requirements due to COVID-19 should be factored into the planning process.

Eligibility to apply under EUSS should be considered both for people who intend to be based permanently in the UK, and those who intend to spend significant time here in the foreseeable future, eg senior executives, other employees or contractors who need to undertake frequent business travel or productive work in the UK.

The necessity and timing of EUSS applications, citizenship applications and British passport applications should also be considered, taking into account the following:

• Naturalisation applications for people with a permanent residence document can be submitted 12 months after the date the Home Office has recognised on the permanent residence approval letter, however the Home Office has recently confirmed that individuals who have a permanent residence document will not be able to apply for naturalisation based on this after 31 December 2020 if they have also been granted settled status under EUSS. They must wait until at least 12 months has elapsed since they were granted settled status. Naturalisation applicants also must build in time to prepare for and pass the Life in the UK Test;

• Individuals who have a British citizenship application pending on 30 June 2021 (the main in-country deadline for applications under EUSS) must make an application under the EUSS by 30 June 2020, otherwise they will be considered to be an overstayer; and

• Some EEA national children born in the UK may be British by birth, and should therefore not make an application under EUSS. Instead, they should consider making a British passport application to evidence their British nationality and facilitate their travel to and from the UK after the end of the transition period.

Tip 2: Be ready for new terminology, cross-referencing headaches and teething problems

The Rules have been drafted in a new style, following on from the report the Law Commission published this January on simplifying the Immigration Rules. Although the finished product may be simpler overall, in the interim there will be a need for extensive cross-referencing, bringing with it potential for confusion. The old Immigration Rules will be replaced by new ones on a phased basis, and the Rules still need to be workable overall in the meantime.

The new routes for students and workers will mainly be under the Points Based Immigration System (PBIS), which is how the Home Office has chosen to distinguish the new categories from the previous Points-Based System (PBS) categories introduced from 2008. The terms ‘leave to enter’ and ‘leave to remain’ are replaced with the less technical sounding ‘permission to enter’ and ‘permission to stay’.

The student categories are set out in two new appendices to the Immigration Rules. We can expect a similar approach when the Rules are published for workers, with separate appendices being expected for Skilled Workers and Intra-Company Transfers. It is not clear yet whether there will be multiple appendices for the various temporary worker categories that currently sit within Tier 5.

The appendix for Students includes provisions relating to their dependants. The choice not to centralise the Rules for dependants across a range of immigration categories could turn out to be a headache both for the Home Office and users of the Rules. There is a high chance that the Rules for dependants in different immigration categories will diverge over time, either intentionally or due to drafting errors. This introduces complexity that could trip some users of the system up.

The two student appendices cross-reference to other ones that will cover common issues and will be relevant for work categories as well. These are:

• Appendix ATAS – this covers the requirement for some adults in most immigration categories who are intending to undertake studies in some subjects to obtain approval under the Academic Technology Approval Scheme (ATAS). The main change is that the new Appendix exempts nationals of certain countries from having to get this approval.

• Appendix English Language – this now provides that where an applicant has met the English language requirement in a previous UK immigration application under any category, they will not be required to meet it again unless the current application requires English language ability at a higher level. Malta and Ireland have now been added as majority English-speaking countries

• Appendix Finance – this covers maintenance requirements

Although the number of cross-referenced appendices will be lower than under the current PBS, there will still be a need to look in multiple places to find out what the full requirements of an immigration route are.

Alongside revisions to the Immigration Rules, the Home Office will also have to update all its related website content and application forms, as well as its guidance for sponsors, applicants and case workers.

All in all, this amounts to a mammoth undertaking, and errors will inevitably be made. It will be a considerable time before the nuances of the new order are fully understood, and any unintended issues are ironed out. Users of the system will need to be vocal about raising issues, and will likely need to be persistent to get them satisfactorily resolved.

Tip 3: Pay attention to validity requirements

One of the notable features of the new student Rules is that in addition to the existing requirements to apply on the appropriate application form, to pay application fees and the Immigration Health surcharge and to provide biometrics and a passport or travel document as proof of identity, some requirements that are currently considered to be eligibility requirements will become application validity requirements. For Students, these include:

• The age of the applicant

• The immigration category or status the applicant is allowed to switch from

• Having a Confirmation of Acceptance for Studies reference number at the date of application

• Having the consent of a government of international sponsorship agency where the applicant has been sponsored in the 12 months before the date of application

 

The benefit of this change is that if an application is deemed to be invalid, the application fee will be refunded, whereas currently it would not be.

 

The much larger pitfall however is that for in-country applicants, an invalid application will mean that no application will have been considered to have been made at all. This can have severe implications for people who attempt to make an application for further permission to stay immediately before their current permission runs out, because a statutory extension of their leave will not arise.

 

If such a person only finds out their application is invalid after their immigration permission has expired and resubmits their application after the expiry of their permission, they will be doing so as an overstayer. This introduces significant complexity and uncertainty into the application process. Also, without a statutory extension of leave, the person would have no immigration conditions, so would not be able to work, study or rent private accommodation during the consideration of their application, even if they were allowed to do so under their previous expired leave.

 

The Home Office may still provide an applicant with a single opportunity to correct issues that would render their application invalid. However, it remains to be seen what the mechanism will be to enable consideration of an application outside the Immigration Rules where a validity requirement is not met, eg where an applicant is asking for a switching requirement to be waived.

 

Tip 4: Get any sponsor licences in order and stay on top of CoS allocations

 

Having a Confirmation of Sponsorship (CoS) on the date of application will almost certainly be a validity requirement for an application under a sponsored work route. Employers will need to make sure they get the timing right for any sponsor applications and requests for CoS allocations so that immigration applications are not unnecessarily delayed. In some cases, timing issues around this could break the continuity of leave of sostme migrants, re-setting the clock for indefinite leave to remain.

 

Employers should review their sponsor licence and CoS allocation needs regularly. They should be aware that sponsor licence applications can take around eight weeks to process and standard requests for revised CoS allocations can take up to 18 weeks. These timelines can be longer if a sponsor visit is required. They could also change if a priority consideration process is resumed or the overall consideration process is revised under the new system.

 

Tip 5: Pay attention to switching requirements

The new Rules for students make good on the Home Office’s stated intention to liberalise and simplify the situations where a person will be able to switch from one immigration category or status into another without the necessity to leave the UK and apply for entry clearance.

For Students, switching will only be prohibited from the following types of permission:

• Visitor

• Short-term student

• Parent of a Child Student

• Seasonal Worker

• Domestic Worker in a Private Household

• Outside the Immigration Rules

The list is likely to be broadly similar for applicants in work categories. As noted above, failure to meet the switching requirement will ordinarily make an application invalid, and clarification will need to be sought on how a request to waive a switching requirement ought to be made. Another point that is not yet resolved is whether the Home Office will consider applications currently being approved under the COVID-19 concessions to have been granted outside the Immigration Rules or not.

Tip 6: Consider certifying the financial requirement if possible

For students, it will no longer be necessary to provide evidence of maintenance funds (which will be known as meeting the financial requirement under the new system) if they have been in the UK with immigration permission for at least 12 months already.

We will need to wait and see what the financial requirements (the maintenance requirement under the present system) will be for the Skilled Worker, Intra-Company Transfer and other work-related immigration categories, however it is likely that a similar provision will be made.

Assuming employer certification is still possible under the new system, it may be a good way to minimise the risk that an application will be refused due to the financial requirement not being met. Currently, there is a published list of financial institutions that are or are not deemed to satisfactorily verify financial statements. However, the recently published Rules show that the financial requirement will not be met if, amongst other things, the Home Office is unable to make satisfactory verification checks with the financial institution. The potential problem is that individual applicants will not know in advance whether or not the Home Office will be able to do that.

Conclusion

Whilst the new Immigration Rules for work routes will not be published until later in the Autumn, the new Rules for students do provide some significant pointers on the Home Office’s general thinking and flag some areas where further policy clarifications will be needed.

We will be exploring the new system, along with the updated position on COVID-19 arrangements and right to work in our  Immigration Law Academy on 23 and 24 November 2020. If you have any specific queries on the new system and how it may affect you, please get in touch with a member of the immigration team.

Related Item(s): Immigration & Global Mobility

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

Employers and other stakeholders have until 1 October 2020 to provide the Independent Chief Inspector of Borders and Immigration (ICIBI) with views on how well the commercial partners of UK Visas and Immigration are performing, both for applications made in the UK and abroad.

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UKVI’s intention in using commercial partners to provide ‘front end services’ (FES) is to make the UK visa application process accessible and easy to use. Sopra Steria operates FES for UKVI inside the UK. TLScontact and VFS Global provide the services abroad.

The ICIBI is seeking evidence from stakeholders on whether commercial partners are meeting the needs of UK visa applicants. Submissions must be sent by email using the link indicated in the call for evidence.

The ICIBI is particularly interested in receiving feedback on:

• Accessibility and ease of use of the online application forms, payment process, appointment booking system, document submission process and any additional services offered by UKVI or the commercial partner

• Customer experience when attending appointments at a commercial provider

• Commercial partners’ complaints handling processes

• The clarity of guidance and instructions provided by UKVI and commercial partners to help applicants make their application

• The availability and usefulness of advice and support, including through customer contact centres

• Whether applicants needed additional help from third parties such as legal representatives, non-government organisations or MPs to deal with the application process, and what the results were

• The experiences of vulnerable individuals who require additional support to submit applications and to book and attend appointments

If you have any queries about the call for evidence, please get in touch with a member of the immigration team.

 

Related Item(s): Immigration & Global Mobility

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

EEA nationals and their employers are now turning their minds towards how frequent business/work travellers and cross-border commuters can continue to come to the UK from 2021. For some, the best solution may be offered by the EU Settlement Scheme (EUSS), but there are also other options to consider.

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This article is not intended to cover the position for Irish citizens, who will continue to be able to live and work in the UK without restriction under the Common Travel Area arrangements. They may however apply under the EUSS if they choose to.

EU Settlement Scheme

The EU Settlement Scheme (EUSS) may be a good option for some EEA/Swiss (‘EEA’) nationals who spend time in the UK for work or business.

It may be relevant for EEA nationals who enter the UK by 31 December 2020. The application should ideally be made as soon as possible after entry, as this minimises the extent of supporting documentation required.

Pre-settled status is valid for five years and only lapses after an absence from the UK of two consecutive years. There are no restrictions on work or study in the UK during the validity of pre-settled status, so this offers more flexibility than most other UK immigration categories.

To become eligible for settled status, a person must normally spend a continuous period of five years in the UK, with no more than six months absence in any 12-month period. There are limited exceptions to this, such as one absence of up to 12 months being allowed for an important reason, such as childbirth, serious illness, vocational training or an overseas posting for work. Absences due to compulsory military service, crown or armed forces service, or accompanying a family member on crown or armed forces service are also ignored.

Even if the person’s pattern of stay in the UK will not allow them to proceed to settlement, pre-settled status could be worthy of serious contemplation for those significant time in the UK over the next five years, particularly if their activities in the UK do not fall neatly into another immigration category.

UK immigration applications can be extremely expensive, and another major benefit of the EUSS is that there is no application fee to pay.

Sponsored work visa

The UK will be revamping its immigration categories for work, which we cover in this article. For EEA nationals and their employers, it will be important to understand which work category is the most suitable to meet their short and longer-term goals.

Some issues to think about include:

• Obtaining a sponsor licence, or amending an existing one

• Ensuring that right to work checks, as well as record keeping and reporting duties are being complied with if the employer has a sponsor licence

• The cost of the immigration process, which will include fees for a sponsor licence (if one is not already held), certificate of sponsorship, visa application fees, immigration skills charge, immigration health charge, commercial partner charges and legal advice

• Whether the role meets the relevant skill level for sponsorship

• Whether the salary on offer is sufficient

• The qualifications and employment history of the applicant

• The English language ability of the applicant

• How long the period of work will be

• Whether the relevant work categories offers a path to settlement in the UK if this is a long-term goal

As an indication, sponsoring a single skilled worker for five years where the employer also needs to obtain a sponsor licence can cost between £6,000 and £8,000.

In terms of forward-planning, UK employers who know that they will be recruiting an EEA national in the new year may wish to consider whether to bring the start of their physical work in the UK forward to 2020, or whether it is feasible for the person to enter the UK by 31 December 2020 if they do not already live in the UK. This strategy would be significantly less costly than using a sponsored work option. 

Frontier worker document

Under EU law, a frontier worker is a person who works in the frontier zone of an EU member state but returns each day or at least once a week to the frontier zone of an adjacent country where they live and are a national. The UK only has a frontier zone with the Republic of Ireland.

Individuals who are employed or self-employed in the UK as a frontier worker before the end of 2020 may be eligible to apply for a frontier worker document, which will enable them to continue to do this from 2021. Details of the qualifying criteria and process are expected to be published on GOV.UK later this year. It is possible that the definition of frontier worker adopted by the UK could include other cross-border workers commuting between the UK and any EEA country, but this will not be known until the policy is published.

Depending on the details of how long a frontier worker document will be available for, and what the criteria are, using this route rather than the EUSS may be more appropriate for some people if it will allow their employment or self-employment to continue for longer than five years in circumstances where a person not would not eligible for settled status under EUSS.

Visitor status

The UK’s visitor visa rules are due to be reviewed with effect from 1 January 2021, however it will still be the case that only limited business or work activities will be allowed. This may still be a suitable option for EEA nationals who only need to come to the UK for occasional business meetings or other short-term business-related activities.

This status cannot however be used to undertake productive work in the UK unless a specific provision allows, for example where a person needs to come to the UK for a month or less at a time for specific permitted paid engagements.

Entry to the UK as a visitor will be free for EEA nationals, however they may need to apply for an electronic travel authorisation (ETA) on a periodic basis for a small charge. The ETA scheme is due to be in place by 2025.

The maximum time that can be spent in the UK as a visitor on any one occasion is six months. A person must not use this route to base themselves in the UK, for example by using frequent or successive visits. They must not work, will have restrictions on study (currently study is only allowed for up to 30 days) and must not access certain public funds.

Other options

There may also be other options to consider depending on how much time a person intends to spend in the UK, the purpose of their intended presence and their personal circumstances. These may include the Youth Mobility Scheme, representative of an overseas business or family-related categories.

In our experience, it is beneficial to have a detailed initial discussion about what the goals and requirements are for each business and individual, so that short and longer-term implications of the various options can be explored. The time to do this is now, while travel from the EEA is still relatively straightforward despite the ongoing effects of the COVID-19 pandemic, and while participation in the EUSS still remains an option.

Please do get in touch with a member of our immigration team if you need assistance.

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

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

We have produced a useful factsheet on the Global Talent Visa requirements.

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Purpose

This visa route is designed for individuals who are recognised or emerging leaders in digital technology and who wish to work in the UK. Successful applicants will be granted up to five years’ leave in the UK and can apply to extend their visa as many times as they like.

Endorsement requirements

Tech Nation will assess and decide whether you meet the criteria for endorsement as either a recognised leader (‘Exceptional Talent’) or an emerging leader if you are earlier in your career (‘Exceptional Promise’).

Applicants must demonstrate at least one of the key criteria and two of the qualifying criteria from the table below.

Exceptional Talent

Key criteria   At least one of:	A proven track record or examples of innovation in the digital technology sector as a founder or senior executive of a product-led digital technology company or an employee working in a new digital field or concept that must be clearly evidenced.
	Proof of recognition for work outside your immediate occupation that has contributed to the advancement of the sector.
Qualifying criteria   At least two of:	Significant technical, commercial or entrepreneurial contributions in the digital technology sector as either a founder, senior executive or employee of a product-led digital technology company.
	Recognition as a leading talent in the digital technology sector.
	Continuous learning/mastery of new digital skills (commercial or technical) throughout your career.
	Exceptional ability in the field by making academic contributions through research published or otherwise endorsed by a research supervisor or other expert

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Exceptional Promise

Key criteria   At least one of:	More than one example of innovation in the digital technology sector as a founder of a product-led digital technology sector company or an employee working in a new digital field or concept that must be clearly evidenced.
	Proof of recognition for work outside your immediate occupation that has contributed to the advancement of the sector.
Qualifying criteria   At least two of:	Significant technical, commercial or entrepreneurial contributions in the digital technology sector as either a founder or employee of a product-led digital technology company.
	Recognition as having the potential to be a leading talent in the digital technology sector.
	Continuous learning/mastery of new digital skills (commercial or technical) throughout your career.
	Providing two or more examples of innovation in the field by making academic contributions through research published or otherwise endorsed by a research supervisor or other expert.

 

Other requirements

Tech Nation will consider applicants with both technical and business skills in the digital technology sector. A wide range of technical applicants are considered, including AI and Machine Learning experts, back-end developers and cybersecurity experts. Please note that for business skills-based applications, these are set at a very high level eg leading substantial VC investment over £25m or experience as C Suite in an SME (CEO, CMO, CIO) or head of operations for a digital business.

Please note that the following specialisms are not considered appropriate. Therefore, if you were seeking to rely on these, they would not deem you eligible for endorsement.

• Service delivery, process delivery, outsourcing, consultancy/ERP consultancy, systems admin and all related fields.
• Corporate roles or experience of managing large corporate teams.
•  Junior investors/analysts.

Tech Nation considers that business skills apply to in-house work within product-led digital technology companies, not tech-enabled or service companies such as agencies, outsourcers or marketing firms and the like.

Settlement

Individuals who are endorsed under the Exceptional Talent requirements will become eligible to apply for Indefinite Leave to Remain after three years. Those who are endorsed under the Exceptional Promise criteria will become eligible after five years.

Application procedure

1. Endorsement – After submitting your application for endorsement, Tech Nation’s panel of independent experts will decide whether your skills and achievements meet the criteria above and whether you should be endorsed for Exceptional Talent or Exceptional Promise. Current processing times for endorsement applications are up to eight weeks, with fast-track options available in some circumstances.

2. Visa – You will need to apply for the Global Talent visa within three months of gaining your endorsement.

How can we help

We are a full service, highly ranked and recognised law firm with commended immigration specialist lawyers who have a breadth of experience with tech clients in particular. We will give you unbiased and helpful advice on the best route forward for you. If the Global Talent visa is the right route for you, we can help you to prepare the most persuasive application possible based on your circumstances and focussed on the endorsement criteria. We build long-term relationships with our clients to help them with all their legal needs throughout the life of their immigration journey in the UK.

Related Item(s): Immigration & Global Mobility

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

Attachment: Global Talent Factsheet

We have produced a useful factsheet on the Start-up visa requirements.

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Purpose and length of stay

The start-up route is open to applicants who:

• Are looking to establish a business in the UK for the first time
• Are the founder of their business, relying on their own business plans
• Have an innovative, viable and scalable business idea Are supported by an endorsing body
• Are 18 years old or over
• Will not be employed as a doctor or dentist in training, or a professional sportsperson

This route offers leave for a maximum of two years and does not lead directly to settlement in the UK, but applicants may progress into the Innovator category. There is no minimum investment funding requirement and the applicant does not need to be the sole founder of the business.

Endorsing bodies

Applicants must have an appropriately issued endorsement from an endorsing body approved by the Home Office for this category.

The endorsing body must:

• Stay in contact with those they have endorsed at checkpoints 6 and 12 months after the application was granted
• Inform the Home Office if, at these checkpoints, the applicant has not made reasonable progress with their original business venture and is not pursuing a new business venture that also meets the endorsement criteria
• Withdraw its endorsement if checkpoint requirements are not complied with, unless it is aware of exceptional and compelling reasons not to do so. The Home Office must be made aware of these reasons.
• Inform the Home Office if it has any reason to believe that the endorsed individual breaches any of their conditions of stay

Applicants should be aware that immigration permission under the Start-up visa category will be cut short (curtailed) if an endorsing body withdraws its endorsement of an individual migrant or if it loses its status as an endorsing body for this category.

Endorsement criteria

Applicants must demonstrate support from an endorsing body listed on the government website through a letter containing:

• The name of the endorsing body
• The endorsement reference number
• The date of issue (no earlier than three months before the application date)
• The applicant’s name, date of birth, nationality and passport number
• Confirmation that they have not previously established a business in the UK, unless they were previously in the UK under the Start-up, Tier 1 (Graduate Entrepreneur) or Tier 4 (General) (doctorate extension scheme) categories
• A short description of the applicant’s business and the main products or services it will provide to customers
• Confirmation that they meet the ‘innovation, viability and scalability’ requirements

  Innovation: A genuine, original business plan that meets new or existing market needs and/or creates a competitive advantage.

  Viability: The applicant has, or is actively developing, the necessary skills, knowledge, experience and market awareness to successfully run the business. This criterion will only be met if the business is realistic and achievable based on the applicant’s available resources.

  Scalability: There is evidence of structured planning and potential for job creation and growth into national markets.

  NB applicants whose previous grant of leave was under the Tier 1 (Graduate Entrepreneur) visa, and whose endorsement is from the same endorsing body as that which led to the grant of that leave, must instead confirm that their venture is genuine and credible.

• The name and contact details (telephone number, email and workplace address) of an individual at the endorsing body who will verify the contents of the letter to the Home Office if requested
• The endorsing body must also be reasonably satisfied that the applicant will spend the majority of their working time in the UK on developing business ventures

The endorsing body must not have withdrawn support by the time the application is considered by the Home Office. Successful applicants can change their business venture during their leave with approval from the endorsing body. This will not require a fresh endorsement or a new visa application. In a future immigration application to the Innovator category, those who change businesses will only need to meet the ‘same business’ criteria for extension and will not need to show the £50,000 in funding that is required for ‘new business’ applications. Please refer to our Innovator factsheet for more information on this visa category.

Genuineness and other considerations

In addition to the requirement for endorsement, the Home Office will make its own assessments in relation to an applicant’s:

• Ability and intention to establish a business in the UK
• Intention to comply with their immigration conditions
• Intention to use any relevant investment funds for the purposes set out in their application, and to those funds being available as claimed

The Home Office can ask for further information or evidence from the applicant or the endorsing body, and may refuse the application if it is not satisfied that the endorsement was issued appropriately. 

Applicants in the Start-up category must also meet an English language requirement, which is set at level B2 of the Council of Europe’s common European framework for language and learning, as well as a cash funds maintenance requirement of £945 and £630 for any dependants.

Please contact us for more information regarding Start-up visas.

Related Item(s): Immigration & Global Mobility, Investor & Entrepreneur Visas

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

Attachment: Start-up visa factsheet

We have produced a useful factsheet on the Innovator Visa requirements.

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Purpose and legnth of stay

The Innovator route is open to applicants who:

• Are experienced businesspeople looking to establish a business in the UK
• Are a founder of their business, relying on their own business plan
• Have an innovative, viable and scalable business ide
• Are supported by an endorsing bod
• Have £50,000 funding to invest in their business, unless they are switching from the Tier 1 (Graduate Entrepreneur) or Start-up category (relying on the same business for which the initial visa was obtained) and are able to demonstrate that their business is performing adequatel
• Are 18 years old or over
• Will not be employed as a doctor or dentist in training, or a professional sportsperson

This route offers three years of leave for both initial and extension applications. There is no maximum time limit in the category and it can lead to settlement in the UK. If the applicant is applying for leave to remain from within the UK, they must have, or have last had leave in any of the following categories:

Applicants do not need to be the sole founder of the business and the applicant’s business can already be trading as long as they are one of its founders.

Endorsing bodies

Applicants must have an appropriately issued endorsement from an endorsing body approved by the Home Office for this category.

Applicants should be aware that immigration permission as an Innovator will be cut short (curtailed) if an endorsing body withdraws its endorsement of an individual migrant or if it loses its status as an endorsing body for this category.

Endorsement criteria for applicants will differ depending on whether the applicant is relying on a ‘new business’ or the ‘same business’.

‘New business’ endorsement can occur where the application is an initial application or an extension application, and the applicant is pursuing a different business venture from the one that was assessed in the endorsement which led to their previous grant of leave. Evidence of investment funds is required.

‘Same business’ endorsement can occur where the applicant’s last grant of leave was in the Tier 1 (Graduate Entrepreneur), Start-up or Innovator category, and the applicant is pursuing the same business venture that was assessed in the endorsement which led to that grant of leave. Start-up visa holders who have changed their business venture during their leave with approval from their endorsing body will need to meet the “same business” criteria when they apply to the Innovator category. 

In all cases the endorsement must be obtained before making an application. This means that an applicant who is in the UK with existing leave must ensure they have received an endorsement and made an application under the Innovator category before their current leave expires, so they can avoid overstaying.

Endorsement criteria for initial and extension applications

New business endorsement criteria

Same business endorsement criteria

Innovation: the applicant has a genuine and original business plan that meets new or existing market needs and/or creates a competitive advantage Viability: the applicant has the necessary skills, knowledge, experience and market awareness to successfully run the business. This criterion will only be met if the business plan is realistic and achievable based on the applicant’s available resources. Scalability: there is evidence of structured planning and of potential for job creation and growth into national and international markets Working Time: the endorsing body must be satisfied that the applicant will spend their entire working time in the UK on developing business ventures

The applicant has shown significant achievements judged against their previous business plan The company is registered with Companies House and the applicant is listed as a director or member of that business The business is active and trading The business appears to be sustainable for at least the following 12 months The applicant has demonstrated a key role in the daily management and development of their business The endorsing body is reasonably satisfied that the applicant will spend their entire working time in the UK on continuing to develop business ventures

 

Confirmation that the applicant meets the appropriate endorsement criteria must be included in an endorsement letter, which must also contain:

• The name of the endorsing body

• The endorsement reference number

• The date of issue (no earlier than three months before the application date)

• The applicant’s name, date of birth, nationality and passport number

• A short description of the applicant’s business venture and the main product or services it provides or will provide to its customers

• Name and contact details (telephone number, email and workplace address) of an individual at the endorsing body who will verify the contents of the letter to the Home Office if requested

The endorsement must not have been withdrawn by the body by the time the application is considered by the decision maker.

Investment funds for new businesses

• Where an applicant is seeking to meet the ‘new business’ endorsement criteria:
• At least £50,000 funds must be available to invest in the applicant’s business. This can include funds already invested in the business.
• Where the applicant is not the sole founder, there must be at least £50,000 of funding available per non-resident Innovator team member
• No further evidence is required where the endorsement letter confirms that at least £50,000 is available to the applicant or has already been invested in the business
• Where not confirmed by the endorsement letter, the applicant must provide evidence in the form of a letter from any organisation or individual providing the funding (an additional declaration, legal representative letter and bank letter will be required if the funding is coming from an overseas organisation, UK organisation employing less than ten people or an individual person), and/or where funds are held by the applicant, bank statements or bank letters proving that the funds are held in a regulated financial institution, and, if relevant, are transferrable to the UK

Genuineness and other considerations

In addition to having an endorsement, the Home Office will make its own assessments in relation to an applicant’s:

• Ability and intention to establish a business in the UK
• Intention to comply with their immigration conditions
• Intention to use any relevant investment funds for the purposes set out in their application, and to those funds being available as claimed

Applicants in the Innovator category must also meet an English language requirement, which is set at level B2 of the Council of Europe’s common European framework for language and learning, as well as a cash funds maintenance requirement of £945 and £630 for any dependants.

The Home Office can ask for further information or evidence from the applicant or endorsing body, and have discretion to refuse the application if not satisfied that the endorsement was issued appropriately.

Settlement

If the applicant is making a settlement (indefinite leave to remain) application, the endorsement letter must confirm that the ’same business’ endorsement criteria continue to be satisfied, and that the applicant’s business venture meets at least two of the following requirements:

• At least £50,000 has been invested into the business and actively spent furthering the business plan assessed in the applicant’s previous endorsement
• The number of the business’s customers has at least doubled within the last three years and is currently higher than the mean number of customers for other UK businesses offering comparable main products or services
• The business has engaged in significant research and development activity and has applied for intellectual property protection in the UK
• The business has generated a minimum annual gross revenue of £1 million in the last year
• The business is generating a minimum annual gross revenue of £500,000 in the last full year covered by its accounts, with at least £100,000 from exporting overseas
• The business has created the equivalent of at least 10 full time jobs for resident workers
• The business has created the equivalent of at least 5 full time jobs for resident workers, which have an average (mean) salary of at least £25,000

Where the applicant relies on job creation criteria, jobs must have existed for at least 12 months and comply with all relevant UK legislation, and must require at least 30 hours paid work per week.

An applicant can rely on any combination of the above, even if similar or overlapping, but cannot rely on one requirement twice.

If the business venture has one or more other team members who are applying for, or who have been granted, settlement as an Innovator, they cannot share the same means of meeting the settlement requirements.

Please contact us for more information regarding Innovator visas.

Related Item(s): Immigration & Global Mobility, Investor & Entrepreneur Visas

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

Attachment: Innovator Visa factsheet

Recent amendments to the Home Office’s COVID-19 guidance for applicants mean that more people will be able to make an application to switch immigration categories without the need to go abroad. The updates also have significant right to work implications for employers whose employees are covered by the grace period the Home Office has put in place until 31 August 2020.

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The Home Office has confirmed it will allow migrants whose leave expires on or after 1 September 2020 to switch immigration categories in-country, where they would normally be required to apply from abroad, if they can demonstrate their application is urgent. Starting a new job or a new course are listed as examples of urgency, however these reasons are not exhaustive.

The relevant in-country fees must be paid and the requirements of the immigration category must be met, aside from the requirement to apply from abroad.

The concession was published on 7 August 2020. Unlike the previous concession which was deleted on 29 July, the new concession does not require an applicant to show they cannot leave the UK to apply from abroad. The new concession still leaves the Home Office discretion to accept or reject the reasons advanced regarding urgency, so submissions and evidence of this should be carefully set out.

It is not stated how long this concession will remain in place, so individuals who wish to use it should look to submit their application as soon as reasonably practical.

Right to work implications of the grace period and exceptional assurance

On 7 August the Home Office revised its wording on the arrangement that will apply to people who cannot leave the UK by 31 August 2020. This is now called ‘exceptional assurance’ rather than ‘exceptional indemnity’. Presumably the Home Office has received advice that the word indemnity should not be used.

Employers should be aware that employees whose immigration conditions allow them to continue during the grace period ending on 31 August 2020 cannot continue working beyond this date if they apply for and obtain exceptional assurance. Where an employee wishes to continue to work beyond 31 August 2020, a formal application for further leave to remain will need to be made by this date.

Employers should also carry out further right to work checks for employees who are covered by the grace period and who continue to have the right to work. We have updated our article on pandemic right to work check procedures with suggestions on options for doing this.

We expect the Home Office to make further significant amendments to the guidance before the end of this month, so early action is advised.

If you have any queries about these developments or need assistance with an application or right to work check, please contact a member of our immigration team as soon as possible. 

 

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

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

The Home Office has now started to make early contact with sponsors whose licences are due to expire up until the end of the year. These sponsors will be able to apply to renew their licences earlier than the usual maximum 90 days before expiry.

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This should help them avoid delays at the end of the year when thousands of licences are up for renewal at the same time as the end of free movement kicks in. Sponsors should also take this opportunity to consider the scope of the sponsor licences they will need under the new immigration system from 1 January next year.

Sponsors will benefit from an automatic four-year extension while the Home Office considers their application. This will be reversed if the sponsor’s application is rejected due to paying the wrong fee. It is therefore advisable to make the application as early as possible so that if the application is rejected, it can be resubmitted with the correct fee before the licence expires.

The Home Office has stated it will aim to review renewals within ten working days of the application being submitted, however consideration may take longer if further information is required or any issues are identified in the course of the initial assessment. When assessing the renewal application, the Home Office review activity on the licence to check for any compliance concerns. Accordingly, we would always recommend conducting a mock audit before submission to be confident of the sponsor’s audit readiness.

For applications where no further action is required, the outcome of the renewal will be communicated to sponsors’ level 1 users via the sponsor management system screen headed ‘Applications and renewals tracking’.

Now that the Home Office has confirmed the broad details of the new immigration system from 1 January 2021, sponsors should take the opportunity to review existing licence details and apply for any additional licences to sponsor non-British (including EEA) migrants from the beginning of next year. One area to consider is whether an existing Intra-Company Transfer licence will need to be updated in order to transfer staff from group businesses located in Europe, or if a new licence will be required. Another issue to review is whether certificate of sponsorship allocations need to be revised to take into account EEA nationals as well as Tier 2 (Intra-Company Transfer) migrants who may wish to switch into the new Skilled Worker category.

The Home Office has also announced to sponsors via the sponsor management system that in person compliance audits will shortly be resuming. The Home Office will comply with advice from Public Health England concerning wearing personal protective equipment and practising social distancing. Compliance officers will also observe additional COVID-19 safety measures individual sponsors have in place.

If you have any queries about these developments or need assistance with an application or mock audit, please get in touch with a member of our immigration team.

 

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

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

The coronavirus pandemic and resulting lockdown has caused millions to work from home for the first time – an experience likely to cause a surge in requests for flexible working arrangements once most employees are asked to return to the workplace. This article considers the legal position and the practicalities for employers in dealing with flexible working requests.

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A huge number of employees have been experiencing the “joys” of homeworking over the last four months. While employers have grappled with logistical issues from technology to client confidentiality, employees have had to contend with personal challenges such as home-schooling, juggling work with caring responsibilities and sharing a “home office” with flatmates at the kitchen table.

Despite the downsides, many employees have reported largely positive experiences of homeworking, including freedom from the daily commute and increased productivity levels. Employers have also been more willing to allow flexible working hours to enable employees to fit work around other commitments. Now the official guidance to always work from home wherever possible has been lifted, employers are bracing themselves for a flurry of flexible working requests.

Our recent employer survey found that 25% of respondents had already received requests for permanent homeworking or increased flexibility over working hours. Many people have discovered that flexible working needn’t just mean a non-working day on a Friday but can instead take many different forms – for example, compressed hours, flexitime, homeworking, staggered hours or job-sharing.

The legal position

All employees with at least 26 weeks’ service can make a flexible working request, which their employer must deal with in a “reasonable manner” within three months. The employer can reject a request for one of eight business reasons which include costs, inability to reorganise work and customer-demand issues.

Refusing a flexible working request from an employee who is protected under the Equality Act often brings the risk of a discrimination claim. Despite the right to request flexible working being extended to cover all employees in 2014, rather than just those with caring responsibilities, statistics still show that women are far more likely to make a request to work flexibly.

This means that an employer’s refusal of such a request may be indirect sex discrimination, because women remain more likely to be disadvantaged by that practice. Employers can justify indirect discrimination, but to do so they need to show they have a legitimate business aim for refusing flexible working that is “proportionate” (meaning all alternatives have been properly considered).

Similarly, disabled people could request reasonable adjustments to working hours and arrangements, a refusal of which by the employer might amount to unlawful disability discrimination. In addition, some workers may ask not to work during certain days or times in order to accommodate religious requirements: refusing such a request raises the risk of a claim for indirect religion or belief discrimination.

Faced with multiple requests – and despite Acas guidance to consider requests in the order received – employers may be inclined to consider which requests are likely to result in a discrimination claim when deciding which ones to reject or accept. Businesses should, however, be wary of stereotypes when considering requests. Employment Tribunals (ETs) have in some cases found direct sex discrimination in situations where a request for flexible working by a man was rejected but would have been granted (or at least seriously considered) for a woman.

With changing demographics equalising some of the childcare responsibilities between the sexes, some ET cases have rejected the idea that women are automatically placed at a disadvantage due to childcare commitments by a policy requiring full time work, given the growing numbers of men who also have these commitments and many women continuing to work full time after having children. Nonetheless, ETs are still likely to find such policies indirectly discriminatory unless objectively justified. Recent research suggests that during lockdown women remain responsible for the burden of childcare and household chores, with mothers in two-parent households doing on average only a third of the uninterrupted, paid-work hours of fathers.

Responding to requests post lockdown

Many employees who have been working from home, doing “odd hours” or working around caring for children or other dependents, may feel that they have successfully “proven” to their employer that they can work productively from home. Employers seeking a return to normality in terms of office hours and presenteeism will need evidence as to why continuing to allow that extent of flexibility would not work for the business in the long term.

Evidence will differ from business to business but could include client complaints, reductions in productivity or difficulty allocating tasks fairly between office-based and home-based staff. Some employers will find it difficult to demonstrate that any of the eight statutory reasons for refusing flexible working apply in cases where the business has performed well during lockdown. Similarly, employers may struggle to come up with a clear and proportionate justification for refusing flexibility where this will otherwise disadvantage women with childcare needs or disabled employees. Where requests are refused, HR can certainly expect a push-back from employees seeking information about the reasons.

Some businesses may find that remote working was a success with a completely remote workforce, but causes issues when offices reopen. Examples might include the need to schedule virtual meetings alongside physical meetings, the logistics of managing office space, or the problem of a few employees in the office taking the burden of mundane physical tasks. This may be easier to manage if employees split their time between home and the office, as opposed to permanent homeworking.

Consistency of approach is a very important practice for employers to adopt. It is crucial to have a clear, centralised process for dealing with requests, as allowing individual managers to make their own decisions is likely to result in inconsistency. An employer should always consider flexible working requests in the order they are received and approach them positively. If approval cannot be granted, it should explore alternatives or compromises that might work instead. While many employers have accepted temporary working arrangements during the pandemic that might not previously have been allowed (e.g. working while looking after children), permanent changes should not be agreed unless properly considered to be sustainable. 

Trial periods have never formed part of the flexible working legislation, but it is still open to employers to agree a change on that basis. Although coronavirus homeworking might itself be regarded as a “trial period”, a more formal arrangement would still be acceptable – especially if the employer wanted to see the impact on its business after most of its employees have returned to the workplace.

If an employer wishes to implement a trial period, it needs to be specifically on the basis that the arrangement is temporary and not a permanent change. It is important to be clear on the length of the trial period, when it will be reviewed and how success (or failure) will be determined. In some cases, the use of a trial period can help the employer show that it was willing to consider the change and provide evidence as to why the arrangement would not work in the longer term.

Working from abroad

Some employees may wish to relocate to another country and continue remote working from there, but the legal ramifications are not straightforward. There are several issues to consider including tax, social security, immigration and employment implications – leaving aside the problem of different time-zones if an employee asks to relocate to the other side of the world! Employers should not be agreeing to such a request without undertaking careful due diligence beforehand.

Pay cuts

Recent statistics have shown that 20% of people would agree to take a pay cut of up to 7% to be able to continue working remotely. Facebook made headlines during lockdown when it announced that it would allow most of its workforce to work remotely on a permanent basis. The catch being that salaries might be reduced according to an employee’s location – targeting in particular those who have relocated from the expensive Silicon Valley area.

Legally, employers need to agree any change to terms and conditions with employees. Allowing employees to work from home during the pandemic would be classed as a temporary change, and employers have been able to ask employees to return to the office from 1 August (provided the workplace is Covid-19 secure). Agreeing a flexible working request results in a permanent change to terms and conditions, meaning employers can include a pay cut as a condition of agreeing to the change.

This is expected to be a particular issue for London-centric businesses in which employees receive a premium salary due to the high living costs associated with the capital. If employees are no longer living in London, and saving thousands of pounds on commuting costs, should they continue to be paid a London salary? The counter-argument from employees may be that employers with remote workforces are able to downsize and potentially make massive savings on expensive office space. 

It is important to remember that pay cuts for remote working may raise discrimination issues in the same way as refusals of flexible working requests, particularly if the majority of those affected are women with childcare needs and/or disabled employees who require flexible working as a reasonable adjustment. Employers will need to be clear on their justification for both imposing a pay reduction and how it has been calculated, ensuring that it has been applied consistently.

Health and safety

With home-working and partial home-working becoming a permanent arrangement, employers need to remember that their health and safety responsibilities are the same for those working from home as those who are in the office.

A home-work station assessment will need to be carried out for long-term homeworkers. Employers will also need to ensure that any equipment they provide is safe and maintained correctly. While there is no legal requirement for employers to fund purchases of suitable equipment homeworkers (e.g. a desk or ergonomic chair), a clear and consistent homeworking policy should be in place setting out the business’s and employee’s responsibilities. It is important to remember that this assessment should include mental as well as physical wellbeing.

For further guidance on this area, see our article Enforced homeworking during the coronavirus crisis- employers’ health and safety obligations.

The future

Even before the pandemic, plans to increase flexible working featured in the Queen’s speech last December with the government proposing a new Employment Bill to make flexible working the default position unless employers have a good reason otherwise.

With so many employees having had the opportunity to practise different ways of working and largely reporting positive experiences, flexible working requests in all their guises are certainly not matters that employers can simply refuse or ignore. Opportunities for flexible working have often been used as a carrot to attract talent and we expect to see an increase in this in future as more and more businesses realise it is an approach that can work for them.

 

Related Item(s): Employment, Equality & Diversity, Covid 19 – Coronavirus

Author(s)/Speaker(s): Helen Coombes, Jessica Bowman,

Barbados has announced a new scheme designed to encourage overseas individuals to relocate there and work remotely. What issues arise for employers if their employees want to do this?

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Just imagine being able to walk out of your office straight onto a beach with crystal clear water and soft white sand, or spending the day working in the shade of a large palm tree, cocktail in hand… It might sound too good to be true but, except perhaps for the cocktail, this dream could now become a reality for some employees currently based in the UK. 

The government of Barbados has announced that it will be offering a 12-month “Welcome Stamp”, permitting overseas individuals with an annual income of at least USD $50,000 to work remotely from the island without the need for any visas or immigration permissions. Barbados’ economy relies heavily on tourism, an industry which has been severely affected by the Covid-19 pandemic. Travelling for short periods has become more difficult, so it is hoped this initiative will encourage people to visit Barbados for longer periods of time.

If an employee wishes to take advantage of the scheme, there are several issues their employer should consider before approving the request.

Income tax and social security

The employer should continue to deduct UK income tax from the employee’s earnings in accordance with their PAYE code. While the general starting point is that tax is due in the country in which the employee is physically carrying out their duties, there is a double tax treaty between the UK and Barbados which cuts across this.

The treaty provides (subject to certain conditions) that, if the employee is UK tax resident and not present in Barbados for a period that exceeds 183 days in any 12-month period (commencing and ending in the Barbadian tax year concerned), they will be exempt from paying tax in Barbados. This would normally mean that, if the employee were to take advantage of the full 12-month period, they would be required to pay tax in Barbados as well as in the UK but would get credit for the Barbados income tax they pay. It has now been confirmed, however, that employees will not be required to pay income tax in Barbados if they have a valid Welcome Stamp.

The employer should also continue to deduct employee National Insurance contributions (NICs) and pay employer NICs. Under an agreement between the UK and Barbados, so long as the employer obtains a valid “Certificate of Continuing Liability” from HMRC, the employee can stay within the UK social security system for any secondment of up to three years and no Barbadian social security will be payable.

Both the employer and employee should seek local advice regarding whether there will be any additional tax or reporting obligations in Barbados. Any written agreement with the employee governing their time in Barbados should confirm that they will be liable for any additional tax or social security that becomes payable as a result of their decision to work abroad. The agreement should entitle the employer to deduct this from the employee’s pay or seek reimbursements if necessary.

Permanent establishment risk

There is a risk that the employee’s activities or presence in Barbados could create a permanent establishment for the employer there. This would be the case if, for example, the employee has a sales or business development role and is habitually exercising an authority to conclude contracts in the employer’s name while in Barbados. If a permanent establishment is created, the profits attributable to it would be subject to corporate tax in Barbados.

If the arrangement is relatively short term, it would be difficult for the tax authorities to argue that a permanent establishment has been created. The longer the arrangement continues, however, the greater the risk. This is particularly the case if the employee is routinely negotiating the principal terms of contracts with customers which are then simply “rubber-stamped” without amendment by UK personnel. Accordingly, the written agreement relating to the individual’s time in Barbados should make clear that it is time limited, with the employee having no authority to enter into contracts with customers or hold themselves out as having such an authority while in the country.

Employment law

If employees live and work abroad, even for short periods, they can become subject to the jurisdiction of the country in question and start to benefit from local mandatory employment protections. This could potentially cause issues if the employer wishes to terminate the employment relationship and the employee asserts that they have acquired rights under local employment law. In Barbados, for example, employees can bring a claim for unfair dismissal after one year’s service, whereas in the UK they need to clock up two years’ continuous employment to qualify.

Before an employer allows someone to work from Barbados, therefore, it should seek advice on the possible impact of local employment law, particularly if it considers the employment relationship may terminate while the individual is overseas. In addition, any agreement with the employee regulating their time in Barbados should make clear that their employment contract will remain subject to UK law and jurisdiction. 

Data privacy

If the employee’s role involves processing personal data, their temporary relocation could give rise to data protection issues as Barbados is outside the European Economic Area and so not subject to the General Data Protection Regulation (GDPR). Although Barbados has implemented similar data protection laws to those under the GDPR, the employer should still approach this issue with caution. It should ensure it is comfortable that any data transfer will not constitute a breach of the GDPR, which could expose it to a substantial fine among other things.

Health and safety

UK employers have obligations to ensure the health and safety of their employees, including providing a safe working environment with adequate facilities and ensuring employees are provided with training, information, instructions and supervision to allow them to work safely. 

These duties are unlikely to involve safeguarding employees against shark attacks or jellyfish stings (depending, of course, on the nature of their role). They would, however, extend to carrying out a risk assessment to identify any potential risks to the employee and taking measures to reduce those risks as far as possible. This might, for example, include providing training on how to minimise the risk of poor posture and back issues when working remotely.

The employer must also ensure that it is complying with the applicable local health and safety laws in Barbados, which contain similar obligations to those that apply in the UK.

Practical considerations

Before an employer approves an employee’s request to work remotely from Barbados, it should ask them to enter into an agreement covering the issues that might arise during their time abroad. In particular, the agreement should document the employee’s return date and confirm that the employer can require them to return to the UK (on reasonable notice) at any stage if the arrangement is not satisfactory. It could also address practical points such as:

• who will pay for any work-related costs

• how the employee will be supervised while they are abroad

• remote attendance by the individual at team meetings (bearing in mind the time difference).

The employee’s ability to participate in company benefits such as pensions, private healthcare, income protection and life assurance may be adversely impacted by their relocation, so it is important to raise this issue with them before they move. Moreover, Barbados’ scheme requires employees to have health insurance coverage for the 12-month period. It will be necessary to clarify whether the employer’s health insurance scheme will suffice for this or if the employee needs to obtain their own cover.

A more flexible future?

Recent studies have shown that many employees would like to continue to work flexibly even after the Covid-19 pandemic has subsided. Although few are likely to take this as far as working from Barbados for a year, it seems plausible that this approach could become more commonplace. Employers may come under increasing pressure to provide greater flexibility – for example, employees may wish to relocate to warmer climes such as Spain or the south of France during the winter months.

In any such situations, employers should carefully consider the risks involved before agreeing to a new working arrangement and ask the employee to enter into a written agreement documenting the arrangements while they are abroad.  

For further, more detailed discussion of the issues outlined above, please see our previous article Home and away – when ‘working from home’ means working abroad.

 

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

Author(s)/Speaker(s): Rosie Moore, James Davies,