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

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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

Exceptional Promise

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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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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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

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,

The COVID-19 pandemic has put questions around the rights of migrants to access public funds and the NHS into the spotlight. Migrants are allowed to access the Government’s Coronavirus Job Retention Scheme (the ‘Furlough Scheme’) via their employer. However, there are limits to what government assistance some migrants are entitled to following disruption to their normal income, and access to free NHS healthcare may also be unavailable to some people.

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What is ‘no recourse to public funds’ and why does it matter?

No Recourse to Public Funds (NRPF) is an immigration condition imposed on most individuals who hold limited leave to enter or remain in the UK. It does not apply to individuals who are in the UK exercising EU free movement rights, or people who have been granted pre-settled status (which is a form of limited leave) under the EU Settlement Scheme.

It is possible to check whether the condition has been imposed by looking at an individual’s immigration stamp, entry clearance sticker, biometric residence permit or Home Office approval letter.

The condition is breached if an individual accesses the following public funds:

• Attendance allowance

• Carer’s allowance

• Child benefit

• Child tax credit

• Council tax benefit

• Council tax reduction

• Disability living allowance

• Domestic rate relief Northern Ireland

• Housing benefit

• Income-based jobseeker’s allowance

• Income-related employment and support allowance

• Income support

• Local authority housing

• Local authority homelessness assistance

• Personal independence payment

• Severe disablement allowance

• Social fund payment

• State pension credit

• Universal credit

• Working tax credit

Breach of the condition is a serious matter. It can lead to the person having their leave curtailed (cut short) or to a future UK immigration application being refused. It is possible to remedy the breach by re-paying the funds received, however this is not always a straight-forward process.

What is excluded from the public funds definition?

It is important to realise that it will not be a breach of the NRPF condition to access government funding that falls outside of the public funds listed above.

So, as relevant to the current pandemic situation, receiving payment from an employer under the furlough scheme will not be considered a breach of the condition.

Also, Government guidance confirms that public funds do not include benefits that a person is entitled to because they have paid National Insurance Contributions, such as:

• Contribution-based jobseeker’s allowance

• Incapacity benefit

• Retirement pension

• Widow’s benefit and bereavement benefit

• Guardian’s allowance

• Statutory maternity pay

State-funded schooling is also not considered to be a public fund, however separate conditions for Tier 4 students mean that they must not study at a state-funded school.

To complicate matters, some people who are subject to NRPF are allowed to claim some of the listed public funds, for example due to an agreement between their country of nationality and the UK. The Home Office has guidance that summarises what exceptions apply, however individuals should consider seeking specific advice on their individual circumstances before deciding whether or not to claim a particular listed public funds.

Is it possible to have the NRPF condition lifted?

People granted limited leave under the ten-year partner, child or parent route, or under the ten-year private life route can apply to the Home Office to have the NRPF lifted. They must provide satisfactory evidence that:

• They are destitute or at imminent risk of destitution

•  There are particularly compelling reasons relating to the impact on a child’s welfare due to the very low income of their parents or carers

• There are exceptional circumstances relating to the migrant’s financial circumstances at the time their application was being considered, and they now wish to provide evidence of this

This process does not apply to people on the five-year partner, child or parent routes, or other immigration categories including work or student categories.

The COVID-19 pandemic has led to a considerable surge in applications to have NRPF lifted. The situation has also prompted the Government to take additional steps to ensure that migrants made vulnerable by the pandemic are supported in other ways that are not considered to breach the NRPF condition.

What other financial assistance may be available for migrants?

People who need to make a new immigration application under certain routes can make an application for a fee waiver if they are destitute our would become destitute if they had to pay the fee and/or the Immigration Health Surcharge (IHS).

People who are facing difficulties due to the circumstances of the pandemic can contact the Coronavirus Immigration Team (CIT) on a case-by-case basis. This may become relevant for example where a sponsored employee has been made redundant, unable to find alternative sponsored employment, and is unable to leave the UK due to flight restrictions or other considerations.

Migrants can also approach their local authority for support.

NHS charging

Everyone in the UK, regardless of their immigration status, is entitled to free COVID-19 testing and  treatment.

However, The Home Office has not provided clarity on whether some NHS charging will be applied to individuals who are within scope of the COVID-19 immigration concessions granting a free automatic visa extension, grace period or exceptional assurance. This may be either because they have not paid the Immigration Health Surcharge or because they are a visitor or short-term migrant who is normally expected to retain appropriate insurance to cover the cost of health treatment in the UK.

The Home Office and Department of Health and Social Care do have mechanisms available to exempt individuals from being charged. Confirmation on whether these will be used in the current situation is urgently needed so that affected individuals are aware of the issue and can look at their options for securing appropriate insurance if required.

Those who are subject to charging may become liable for considerable cost. They may also have future UK immigration applications refused if they have an outstanding debt to the NHS of at least £500. A particular danger is that in some historic cases, notifications of NHS debts have not made until after the person has submitted and paid for their next immigration application.

If you have any queries on any of the topics covered in this article, please contact a member of our immigration team.

Related Item(s): Immigration & Global Mobility

Author(s)/Speaker(s): Li Xiang,

From 1 January 2021 there will be a new immigration system in the UK. Due to free movement ending, the new system will apply to EEA and Swiss (‘EEA’) nationals as well as non-EEA nationals. Employers need to start preparing for this change now, 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 suggests timeframes for taking action.

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 companies 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. Keep an eye on our Events page for confirmation of future dates, or get in touch with a member of our Immigration team to arrange for bespoke training.

Why?

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.

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 employers the certainty required to focus their 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.

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 now 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.

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 despite certain allowances having been made due to COVID-19 (which we cover here), and HR teams need to stay on top of compliance to avoid exposing themselves 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 check in December

Identify relevant employees before October 2020 to allow for applications to be processed before the system changes.

Why?

Companies are currently able to employ individuals on temporary visas which may not qualify to switch into permanent routes under the new system. Failure to submit applications to switch into permanent routes may result in the individual being unable to continue working in the UK once the new system is implemented.

Need more detailed assistance?

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

Why?

Current EEA employees and their family members who are eligible but do not apply to the scheme before 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.

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

Need more detailed assistance?

Under our 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 applications.

Get in touch with a member of our Immigration team to discuss putting together the right tools for your business.

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 navigate any queries if you are new to the process.

Before December 2020 so that they are ready to go in January 2021.

Why?

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.

Always. 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,

From January 2021, the UK will make a new visa route available for British Nationals (Overseas) and their dependants who are usually resident in Hong Kong. The route will lead to settlement after five years’ residence in the UK, with the option to apply for British citizenship becoming available for most participants after a further year.

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Also, immediate arrangements have been put in place to allow eligible applicants to come to the UK ahead of the implementation of the route, with a view to them applying inside the UK after it is launched.

The UK Government published further details of the arrangements via a policy statement on 22 July 2020, and detailed Immigration Rules are due to be made public in the Autumn.

Requirements for the Hong Kong BN(O) visa

The main applicant must be a British National (Overseas) (BN(O)). They will not be required to hold a BN(O) passport. If the main applicant does not have a valid or expired BN(O) passport, their citizenship status can be checked using the British government’s historical records.

The main applicant and each dependant will also need to submit an online application and:

• Show they normally live in Hong Kong (or already be living in the UK with immigration permission)

• Show they can support and accommodate themselves at least six months

• Confirm a commitment to learning English – it is not yet clear how this will work but we anticipate that applicants will either need to demonstrate their existing English language proficiency is above a certain threshold or agree to take particular steps to learn English within a certain time period

• Have a valid test certificate from a UK-government authorised doctor confirming they are free of tuberculosis

• Record their biometric data – it is proposed to do this using an app for the main applicant, however dependants will need to enrol their fingerprints at an application centre

• Pay an immigration application fee, the amount of which is not yet confirmed

• Pay the immigration health surcharge

It will be possible to make applications either in the UK or abroad. Successful applicants will receive a digital visa.

Dependants

Eligible dependants include the main applicant’s:

• Spouse or civil partner

• Unmarried partner with whom they have lived as partners for at least two years

• Child aged under 18 when they first apply under the route

• Other family members where a high level of dependency is shown

Length and conditions of stay

Main applicants can choose to apply for a stay of 30-months with a 30-month extension, or one stay of five years. Dependants will have their visas issued for the same length as the main applicant.

Holders will be entitled to work and study in the UK but like other individuals with limited stay, will not be allowed to access most publicly-funded benefits. They will be eligible to use the National Health Service and state education.

Settlement

Settlement will be available after five years’ continuous residence, which means that absences from the UK must not be more than 180 days in any 12-month period. Applicants will also need to show they have complied with the terms of their visa and have not breached criminality thresholds. They will also need to demonstrate a knowledge of the English language and having passed a Life in the UK test.

Settled status may be lost after a continuous absence from the UK of two years, however an application may be made to reinstate it if certain circumstances apply.

Citizenship

An application British citizenship will become possible for adults at least one year after they have been granted settled status. The criteria differ depending on whether the adult is a BN(O) or holder of another nationality, but broadly they will need to meet absences requirements, criminality requirements, and demonstrate a knowledge of the English language and having passed a Life in the UK test. Child dependants may become eligible to register as a British citizen either at the same time or, if born in the UK, at the point one of their parents become settled. The requirements for children to register as a British citizen depend on the basis of their application so specific advice should be sought on a case-by-case basis.

Indicative fees

The indicative fee information below is based on current fee levels, which are subject to periodic change. The table does not cover all scenarios and excludes other related charges, such as for tuberculosis testing, English language testing and services payable to application centre providers.

Arrival before implementation of the new route

Before the new route is implemented, BN(O)s and their dependants can apply at the UK border for leave outside the Immigration Rules. This is a new arrangement announced on 22 July 2020 and will allow entry with an entitlement to work or study for six months.

All members of a family unit should travel together to use this option.

An application of this type will need to be well-documented, including providing:

• Evidence of identity, eg through the passport they travelled on

• Evidence of BN(O) citizenship, if possible (however Border Force can check most historical records if necessary)

• Evidence of normally living in Hong Kong, eg through Hong Kong ID card or medical card, voter’s card, Hong Kong immigration documents, evidence of employment or studies in Hong Kong etc

• Evidence of the ability to support and accommodate themselves in the UK for at least six months, eg through bank or investment statements, evidence of regular income that will continue for at least six months, job offer, offer of accommodation from family or friends etc

• Evidence of dependants’ relationship to the BN(O), including marriage/civil partnership/birth certificates, evidence of living together for at least two years in the case of unmarried partners, and evidence of dependency for dependants other than partners or children under 18

Individuals who choose to enter the UK under leave granted outside the Rules will not be allowed to access most public benefits and will not have free access to the National Health Service (unless a specific charging exemption applies to them). Therefore, full health insurance will normally be needed, covering the full period of stay until permission is granted under the BN(O) visa route.

Alternatively, BN(O)s and their dependants can continue to apply to come to the UK under existing immigration routes. We would advise caution however around seeking to enter the UK as a visitor as this requires an intention not to stay in the UK long-term. Also, in most cases dependants other than a partner or child under 18 will have no other option than to seek entry outside the Rules.

If you have any queries about the arrangements or would like assistance with making an application, please contact Kathryn Weaver, Lily Shen, Naomi Hanrahan-Soar or Li Xiang.   

Related Item(s): Immigration & Global Mobility, Immigration law in Hong Kong, Immigration law across APAC

Author(s)/Speaker(s): Kathryn Weaver, Lily Shen, Naomi Hanrahan-Soar, Li Xiang,