In a last-minute update on 29 July 2020, the Home Office has pivoted towards a return to business as usual on immigration policy. Some significant concessions remain available until at least 31 August 2020, however there are a number of potential pitfalls for employers and individuals to be aware of.

Text:

The Home Office’s Coronavirus (COVID-19): advice for UK visa applicants and temporary UK residents contains a range of policy changes, some of which require further urgent clarification or correction. It will therefore be important to ensure the latest version of the guidance is referred to, as we anticipate this will be updated again over the coming days. There may also be a lag in developments being confirmed on GOV.UK or other policy documents maintained by the Home Office, so we would recommend seeking specific advice for affected individuals until the position is more settled.

Grace period for those whose leave was due to expire between 24 January 2020 and 31 August 2020

Individuals in this situation are allowed a further ‘grace period’ to 31 August 2020. As clarified in an update made on 30 July 2020, between 1 August and 31 August 2020, they continue to be lawfully in the UK on the same conditions as previously. This means they will remain entitled to work, study and rent accommodation if their conditions previously allowed this. They do not have to contact the Home Office if they are able to leave the UK by 31 August 2020.

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

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

Pitfalls to be aware of

It is possible that some people may have their employment terminated or be unable to continue to rent accommodation if employers or landlords fail to recognise that the grace period applies to the person and that they remain lawfully in the UK under the same conditions as previously.

‘Exceptional indemnity’ for those who are unable to depart the UK by 31 August 2020

Those who cannot depart the UK by 31 August 2020 can email the Coronavirus Immigration Team at CIH@homeoffice.gov.uk to request an ‘exceptional indemnity’ which is not leave but which is stated will protect a person from any action or adverse consequences after their leave has expired. A person who requests the indemnity will have to provide the Home Office with details of their circumstances, including stating and substantiating why they are not able to leave before 31 August 2020. Evidence of a flight booking or positive coronavirus test result may be required for example.

It is not explicitly stated in the guidance, but our view is that requests for an exceptional indemnity must be made by 31 August 2020.

It is not yet clear whether exceptional indemnities will all be granted to expire on one particular date, or if the date of expiration will depend on each person’s individual circumstances.

Pitfalls to be aware of

Absent any further policy clarification from the Home Office, it would appear that because a person who is granted the exceptional indemnity will have no leave, they will not have lawful immigration status during the period of the indemnity and any previous immigration conditions allowing them to right to work, study or rent accommodation in the UK will fall away after 31 August 2020.

This runs counter to the repeated assurances from Kevin Foster, Minister for Future Borders and Immigration, and the general immigration policy position set out elsewhere in immigration guidance that migrants should not be disadvantaged as a result of circumstances beyond their control because of COVID-19. It is entirely foreseeable that some individuals will be substantially disadvantaged and will possibly be rendered destitute or homeless while they remain in the UK without the ability to work or rent accommodation. We therefore expect that the Home Office will be urged to revise this policy stance.

If the policy is not revised, then it may be a better option for some people to make a fee-paid application for further leave to remain either within or outside the Rules. Subject to any clarification from the Home Office that the grace period is not in fact further leave to remain (see the section on switching below), filing an immigration application by 31 August 2020 will preserve the continuity of the person’s lawful status and their conditions of stay while the application is under consideration and during any period where an appeal or administrative review could be made or is pending.

Switching into another immigration category from within the UK

People whose leave has been extended under the COVID-19 concessions to 31 July 2020, including people who are entitled to rely on the grace period to 31 August 2020, are allowed to switch into another immigration category from within the UK when they would usually need to apply for a fresh visa from abroad. A clarification to the guidance made on 30 July 2020 confirms this arrangement includes people whose leave is due to expire between 1 August and 31 August 2020.

Pitfalls to be aware of

Although the guidance is clear that a person’s immigration conditions will remain the same until their application is decided, it is not explicit as to whether those who apply within the grace period will be entitled to an administrative review or appeal if their application is refused, and if their conditions of stay will continue during the time this can be made or until it is finally determined.

Also, although the guidance no longer states that affected individuals will only be allowed to switch into a ‘long-term’ immigration category, it is not clear whether the Home Office still intends that switching will not be possible into the Tier 5 Youth Mobility Scheme, Tier 5 seasonal worker and overseas domestic worker categories, as well as Tier 4 where the individuals in receipt of a Chevening, Commonwealth or Marshall scholarship. Emails that have been sent to individual migrants still include a reference to being able to switch into ‘long-term’ categories only, so further clarification from the Home Office is needed on this point.

It should be noted that the previous discretionary switching concession allowing those with leave expiring after 31 July 2020 to switch if they urgently need to make a new application and cannot leave the UK to apply from overseas has been removed. This does not mean that there is an absolute bar on making such applications, just that applicants would need to rely on Home Office’s general discretion to disapply a requirement of the Immigration Rules where this benefits the applicant. The appropriateness and timing of applications of this type should be assessed on a case-by-case basis. We do not yet know the earliest date it may become possible to apply to switch into the categories of the new immigration system due to go live from 1 January next year, however this may offer a solution for some people.

Family and private life applicants

The COVID-19 concessions for family and private life applicants have not been updated. As a result, there are now contradictions within the guidance for these people. Our view is that this is due to drafting error and we anticipate the Home Office will correct this over the coming days.

According to the guidance on family and private life applicants as it currently stands:

• family and private life applicants do not appear to benefit from the main switching concession if they wish to switch into a family or private life route from visitor or another category of leave granted for six months or less. The guidance still says that they will only be allowed to switch from these categories up to 31 July 2020.

• fiance(e)s and proposed civil partners will have to make a paid for extension if their ceremony cannot take place in time for them to be able to make a spouse/civil partner application by 31 July 2020. This is inconsistent however with the grace period, which entitles the person to remain lawfully in the UK with the same conditions of stay until 31 August 2020.

• the concessions on minimum income and adequate maintenance requirements for family route applicants have not been extended to cover a loss of income beyond 31 July 2020 due to the impact of the COVID-19 pandemic

If you have any queries arising from these policy changes or require assistance with an application, please contact a member of our immigration team.

Related Item(s): Immigration

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

The Home Office has released the first guidance on the a new ‘Health and Care Visa’ for doctors, nurses and allied health professionals including individuals working in the social care sector. The Health and Care Visa will be available from 4 August 2020 and will fall under the Tier 2 (General) category.

Text:

Eligibility

To be eligible for this new visa an applicant must:

• Be applying for a Tier 2 (General) visa
• Be filling a job that falls within a specified list of Standard Occupational Classification (SOC) codes; and
• Be employed by the NHS, NHS commissioned service providers or social care providers that are listed in the Home Office’s Tier 2 guidance

 The exhaustive list of SOC codes that will be eligible for the new visa is:

• 2112 – Biological scientists and biochemists
• 2113 – Physical Scientists
• 2211 – Medical Practitioners
• 2212 – Psychologists
• 2213 – Pharmacists
• 2214 – Ophthalmic Opticians
• 2215 – Dental practitioners
• 2217 – Medical Radiographers
• 2218 – Podiatrists
• 2219 – Health Professionals not elsewhere classified
• 2221 – Physiotherapists
• 2222 – Occupational Therapists
• 2223 – Speech and Language Therapists
• 2229 – Therapy professionals not elsewhere classified
• 2231 – Nurses
• 2232 – Midwives
• 2442 – Social Workers
• 3213 – Paramedics

The occupation list will be reviewed and most likely expanded under the new Skilled Worker route from 1 January 2021. This is because occupations at level 3 or above on the Regulated Qualifications Framework (A-level equivalent) will be eligible for a Skilled Worker visa, whereas only level 6 (bachelor degree equivalent) occupations are eligible under Tier 2.

The Home Office has confirmed in a press release that it intends to exclude care workers from the scope of the visa, both under the current system and the new one.

It will be important for sponsors to include an explanation on why the applicant is eligible for the Health and Care Visa on their Certificate of Sponsorship (CoS). If the explanation is not included on the CoS, then the application could be rejected as insufficient fees would be paid.

IHS exemption and fee reduction for Health and Care Visa applicants and dependants

As announced by the government on 21 May 2020, Health and Care Visa applicants and their dependent family members will be exempt for paying the Immigration Health Surcharge.

In addition, the applicants and their dependants will be entitled to a reduced government application fee. At the time of launch, the fees will be as set out in the table below for each applicant/dependant. These will be the same regardless of whether the application is made within the UK or abroad.

Certificate of Sponsorship (CoS) length	Fee
Three years or less (shortage)	£232
Three years or less (non-shortage)	£232
More than three years (shortage)	£464
More than three years (non-shortage)	£464

The fees may be subject to change in the future and do not include the biometric enrolment fee of £19.20 per person or fees charged by the Home Office’s commercial partners.

If an employee who would qualify for a Health and Care visa is already in the UK under Tier 2 and has dependants who are joining them from abroad, then the dependants can benefit from the reduced application fee and exemption from the Immigration Health Surcharge. To benefit from the fee reductions the sponsor will need to provide a letter or email confirming information about the main applicant that would normally need to be provided in a CoS for the Health and Care visa. If the sponsor is not an NHS body, the letter or email must also outline how the sponsor is a qualifying organisation for the visa.

Fast-tracked visa processing

The Home Office plans to prioritise these applications and have said that they aim to process all applications within three weeks of the biometric enrolment appointment. This is the same timeline for processing an entry clearance application when the standard service is used, though is much faster than applications made in the UK which can take up to eight weeks to process.

IHS reimbursement for other health and social care workers

Separately, since 31 March 2020, individuals who are working in health and social care have been exempted from paying the Immigration Health Surcharge on a permanent basis. Workers who have paid the Immigration Health Surcharge on or after 31 March 2020 will have this reimbursed. This is the case even if the person does not qualify for the Health and Care Visa.

It is not clear whether the reimbursement will available for the worker or will also cover their dependants, however further information will be published on the Immigration Health Surcharge page of GOV.UK. The Home Office has been proactively contacting Tier 2 workers and will set up an operational mechanism in conjunction with the Department of Health and Social Care to reimburse individuals who are outside the scope of the Health and Care visa. These arrangements are expected to start from 1 October 2020 and the reimbursements will be made in six-monthly tranches. Individuals who believe they are due to be reimbursed can email UKVINHSTeam@homeoffice.gov.uk.

If you have any queries about these developments, please contact a member of our immigration team.    

Related Item(s): Immigration & Global Mobility

Author(s)/Speaker(s): Andrew Osborne, Tara Sayer,

On 17 July 2020 the Home Office updated its policy guidance to confirm a surprisingly limited concession to the usual minimum income requirements that most applicants for partner and child visas must meet.

Text:

The concession appears on the final page of the Home Office’s policy guidance on meeting the financial requirement for entry clearance, entry clearance, limited leave to remain or indefinite leave to remain applications under the Immigration Rules for the partners and children of British citizens and settled persons.

The guidance is intended to ensure that applicants are not disadvantaged as a result of circumstances beyond their control because of COVID-19.

It confirms that income received via the Coronavirus Job Retention Scheme or the Coronavirus Self-Employment Income Support Scheme can count as employment or self-employment income for the purposes of meeting the minimum income requirement, but only where there is evidence of a temporary loss of income due to COVID-19 between 1 March 2020 and 31 July 2020.

More specifically, it states the following:

• a temporary loss of employment income between 1 March and 31 July 2020 due to COVID-19 will be disregarded provided the minimum income requirement was met at the required level for at least six months up to March 2020

• an applicant or sponsor furloughed under the Government’s Coronavirus Job Retention Scheme will be deemed as earning 100% of their salary

• a temporary loss of annual income due to COVID-19 between 1 March 2020 and 31 July 2020 will generally be disregarded for self-employment income, along with the impact on employment income from the same period for future applications

• evidential flexibility may be applied where an applicant or sponsor experiences difficulty accessing specified evidence due to COVID-19 restrictions

The published policy guidance is concerning for two reasons.

Firstly, unless swiftly revised, it signals that the Home Office is not intending to make allowances where an applicant has a temporary loss of income beyond 31 July 2020. This could be disastrous for people who continue to be furloughed, who lose their job either in the near future or following the closure of the furlough scheme at the end of October, or whose income from self-employment continues to be impacted by the pandemic over the coming months.

Secondly, the policy guidance is more restrictive than the concession for family route applicants published on GOV. UK, which:

• is stated to apply to both the minimum income and adequate maintenance requirements (which applies to the situation where the UK partner is in receipt of certain benefits or pensions)

• does not specify an end date for which a loss of employment income will be considered to fall within the concessions

Although an individual’s application may not necessarily fall for refusal if they are unable to meet the minimum income or adequate maintenance requirement, if approved it is likely to result in the person being placed on a ten-year path to settlement rather than a five-year one.

Clarification is awaited from the Home Office to resolve the inconsistencies between the two sets of guidance, and whether the concessions will remain in place beyond the end of this month. More generally, the COVID-19 many of the COVID-19 concessions need to be reviewed before the end of this month as they only cover the situation to 31 July 2020. We will provide a further information soon as there is an update.

Please contact a member of the immigration team if you have any queries about making applications under the family route or otherwise need assistance.  

 

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

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

A new immigration scheme that could give up to three million Hong Kong residents a path to British citizenship has piqued the interest of both corporate and private clients.

Text:

Click here to read the full article.

Please note this article is behind a paywall.

 

Type: Press

Related Item(s): Employment law in Hong Kong, Immigration law in Hong Kong, Immigration

Contributor(s): Kathryn Weaver, Naomi Hanrahan-Soar

On 13 July 2020 the Home Office published a more detailed policy statement on the changes to the UK immigration system due to come into effect from 1 January 2020, including its re-design of Points-Based immigration routes.

Text:

The statement provides a summary of the planned reforms to the most commonly used work, business, study and visit routes, ahead of simplified Immigration Rules and guidance being published in the autumn. It represents a consolidation and elaboration of the Government’s policy announcements on the new system to-date.

Other routes, including the family route, will not be immediately changed, but will become applicable to EEA/Swiss citizens and their family members who are not eligible under the EU Settlement Scheme, due to free movement arrangements having ended on 31 December 2020.

Significantly, the statement reiterates that the Home Office has accepted the recommendations of Wendy Williams’ Windrush lessons learned review. This will require it to implement fundamental cultural and operational changes across the board to improve the fairness, humanity and openness of the system, as well as addressing diversity and inclusion.

The key policy points for specific immigration categories and arrangements are outlined below.

Skilled Worker

This route will replace Tier 2 (General).

In addition to re-confirming the eligibility criteria set out in the previous policy statement in February 2020 (which we covered here), the new statement explicitly confirms that certain health and education jobs must only meet the relevant national pay scale for their occupation, and that ‘new entrants’ beginning their professional career may be paid up to 30% less than the experienced worker rate for their occupation. In both of these cases the worker must however also be paid a minimum of £20,480.

There is confirmation that:

• Applicants who seek to rely on the absolute minimum salary threshold of £20,480 must also be paid at least 80% of the going rate for their occupation (or 70% if they are a new entrant) – this is now set out in the points table for the route
• Applicants who seek to rely on having a salary of at least £23,040 must also be paid at least 90% of the going rate for their occupation – this is now set out in the points table for the route
• Applicants will only be eligible to claim PhD tradeable points for listed occupations – these are set out in Annex B to the statement and cover high level managerial positions, professional occupations and occupations where having PhD level STEM research or technical knowledge is deemed advantageous
• Sponsors will have to decide and be able to justify whether an applicant’s PhD is relevant to the sponsored role, and whether a particular PhD is a STEM PhD – the Home Office can refuse an application if the sponsor’s assessment is deemed not to be credible
• The definition of ‘new entrant’ will now include people switching from the Student or Graduate route to the Skilled Worker route, those who are under the age of 26 when they apply and those who are working towards a recognised professional qualification (i.e. those who will be sponsored under a regulated occupation or protected job title and are working towards a full registration or chartered status with the relevant professional body) or who are moving directly into a postdoctoral position

The statement also mentions that the Home Office may widen the ‘tradeable’ points criteria for this route if the UK’s economy requires it.

The points table for the skilled worker route is set out below.

Non-tradeable points (mandatroy) – 50 required
Offer of a job by an approved sponsor	20
Job at an appropriate skill level	20
English language skills at level B1 (intermediate)	10

Tradeable points (may only score from one entry from each of the two sections below) – 20 required
Salary			Other
General salary threshold	Going rate
Salary of at least £20,480	At least 80% of the going rate for the profession (70% if a new entrant).	0	Education qualification: PhD in a subject relevant to the job	10
Salary of at least £23,040	At least 90% of the going rate for the profession.	10	Education qualification: PhD in a STEM subject relevant to the job	20
Salary of at least £25,600	At least the going rate for the profession.	20	Job in a shortage occupation (as designated by the MAC)	20
Salary of at least £20,480	Listed health/education job and meets the relevant national pay scale	20	Applicant is a new entrant to the labour market (as designated by the MAC)	20

A comprehensive list of eligible occupations and going rates is included in the statement at Annex E. Ineligible occupations are also listed here.

It is too early to predict which occupations will be considered to be shortage occupations as the Migration Advisory Committee is not due to report to the Government on this until September 2020.

The statement does not contain any details of whether or how cooling off arrangements will apply to this route.

Skilled Worker – Health and Care visa

The previously announced NHS visa has been re-named the Health and Care visa, and will fall underneath the Skilled Worker route. The name change reflects that it will now cover people who are sponsored to work directly for the NHS, in the social care sector and for NHS commissioned service providers. A partial list of eligible occupations at RQF level 6 or above has been published at Annex D of the statement, however the full list encompassing occupations at RQF level 3 or above will be released in line with the launch of the Skilled Worker route later in the year.

As previously announced, applicants under this category will be exempt from paying the immigration health surcharge (IHS).

The statement makes a new announcement, which is that frontline workers in the health and social care sector who are not eligible for the Health and Care visa will still be required to pay the IHS but will be able to access a reimbursement scheme, the details of which will be published at a later date.

In the meantime, the Health and Care visa will be incorporated into Tier 2, with applications being accepted from 4 August 2020.

Intra-company transfers

The Government has been silent to-date on its plans for intra-company transferees.

It has now been clarified that Tier 2 (Intra-company transfer) will be replaced by two new categories, one for Intra-Company Transfers and another for Intra-Company Graduate Trainees.

The eligibility criteria for these will remain broadly as they are currently, including that the skill level required for sponsorship under these categories will remain at RQF level 6 and that the routes will not lead to settlement. The minimum salary thresholds will continue to be different from the skilled worker route, however whether these will stay at the current level of £41,500 (£23,000 for graduate trainees) is not explicitly confirmed.

A helpful proposed change is that individuals will be allowed to switch from these categories into the skilled worker route from within the UK. The cooling off provisions will also be made more flexible by stipulating that an intra-company transferee can only have entry clearance or leave to enter in this capacity for a maximum of five years in any six-year period, except where they are allowed to be granted up to nine years stay on the basis of high earnings.

Highly skilled worker route

A highly skilled worker route is mentioned in the statement, but few details are made available. This route will become available sometime after the new system launches at the beginning of next year. It will be unsponsored, will have an annual cap on numbers and will be formulated with stakeholder engagement over the next year.

Graduate route

The statement includes the recent announcement that the new Graduate route due to be implemented from summer 2021 will allow PhD graduates to be granted three years leave under the route, instead of the two years available for bachelor and master’s degree graduates. It also confirms the route will not have a maintenance or English language requirement. The IHS will be payable.

Controversially, it will only be possible for a participant on this route to be accompanied by any dependants who are already in the UK with them. Dependants must make an application for leave under the Graduate route at the same time as the main applicant.

Graduate route participants will be allowed to do supplementary study in the UK, but not with a Student route sponsor. This is a significant restriction on study which appears to be designed to force participants who wish to return to study to make a further application under the sponsored Student route.

Tier 5 Youth Mobility Scheme

The statement does not refer to the previously-mentioned proposal to establish a UK-EU Youth Mobility Scheme, instead focusing on the UK’s ability to conclude youth mobility agreements with other countries on a bilateral basis. This may indicate that is now considered significantly less likely that the UK will be able to negotiate a youth mobility agreement with the entire EU as part of a comprehensive trade deal.

Sporting routes

The arrangements for sportspersons to come to the UK will be reorganised into temporary and long-term sporting routes, which appear to be unchanged from the current Tier 5 (Sporting) and Tier 2 (Sportsperson) arrangements.

Other work routes

The statement refers to new categories that currently exist under Tiers 2 and 5:

• Creative route
• Charity
• Ministers of Religion (settlement route)
• Religious workers (temporary work route that does not lead to settlement)
• Government Authorised Exchange – the Home Office may consider consolidating the currently recognised schemes under the new system
• International Agreement – this route will be reviewed and clarified

UK Ancestry

It is proposed that the UK Ancestry route will remain in place under the new system.

Visitors

Visitors under the new system will be allowed to study at an accredited institution for up to six months under the standard visit route, rather than having to meet separate Immigration Rules for short-term students. There will however continue to be a separate route for individuals who intend to undertake a short-term English language course lasting between six and 11 months.

Sponsorship

Existing Tier 2 sponsors will be automatically granted a Skilled Worker or Intra-Company Transfer sponsor licence, which will expire on the same date as their current licence. They will also be given an allocation of Certificates of Sponsorship.

There will be no cap on sponsored skilled workers and no requirement for sponsors to complete labour market testing before sponsoring a migrant worker.

Employers who do not currently hold a sponsor licence, or who do not hold one in all of the categories they anticipate needing to use under the new system, should ensure they make relevant sponsor licence applications as soon as possible if they anticipate needing to sponsor EEA or Swiss nationals from the beginning of next year.

Operational arrangements

The statement also makes the following general points about future operational arrangements:

• EEA nationals will in most cases be able to self-enrol a facial image as part of their immigration application, rather than having to attend a visa application centre to enrol biometrics
• Longer-term, the Home Office plans for visitors and migrants to the UK to provide facial images and fingerprints under the one system, in many cases through self-enrolment
• Application fees and the immigration skills charge will initially remain unchanged
• The Immigration Health Surcharge will remain in place and will be increased from 1 October 2020, however exemptions due to be published shortly will exempt frontline NHS, social care and wider health workers
• In-country switching will be allowed in most cases, except where the migrant has entered the UK in a short-term route such as a visitor or seasonal worker
• The existing domestic criminality and deportation thresholds will be applied to EEA/Swiss nationals and their family members, except that those who are covered by the Withdrawal agreement will only have these thresholds applied to conduct that has occurred after the end of the transition period
• As part of a universal ‘permission to travel’ system that the UK intends to introduce on a phased basis to 2025, an Electronic Travel Authorisation (ETA) will be introduced which will require individuals who wish to visit or transit the UK to complete an online application process prior to travel
• EU citizens will no longer be able to use their national ID card to enter the UK during 2021 and must use a passport instead – further announcements will be made about this change

Visa categories excluded from the scope of the statement

The statement does not cover the seasonal workers pilot for agriculture, as this will be reviewed once the pilot is completed at the end of this year. A new visa route for British Nationals (Overseas) Hong Kongers and their dependants has also been recently announced, and details of that are due to be released in the coming months. The statement also excludes discussion of the arrangements for a range of other immigration categories, such as investors, representatives of overseas businesses and overseas domestic workers.

Please contact a member of the immigration team if you have any queries about this statement or otherwise need assistance. 

 

Related Item(s): Immigration & Global Mobility

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

In our recent webinar on 7 July 2020, we discussed the current position regarding Brexit and the EU Settlement Scheme, as well as the Home Office’s plans for implementing the new system. Our webinar generated a wide-ranging set of questions from attendees, which we have collated and answered as a set of Q&As.

Text:

You can view the webinar in full and download a PDF version of the Q&As below.

In these Q&AS, unless otherwise indicated, the term ‘EEA national’ means nationals of countries included in the European Economic Area, as well as Swiss nationals. 

Please note the information provided on this page both in the webinar and Q&As states the position at this point in time and provides general guidance only. Please get in touch for any expert advice relating to particular circumstances.

 

 

 

What should employers be doing to ensure that current/future employees who are EEA nationals or their family members have the right to work?

We know that the current requirements for right to work checks will remain in place until the end of this year. For EEA national employees or employees who are family members of EEA nationals and start work on or before 31 December 2020, a correct right to work check carried out before the commencement of work will provide the employer with a statutory excuse against a civil penalty for illegal working. The excuse can be relied on if it emerges at a later stage that the person does not have the right to work in the UK. For EEA national employees and their family members with a confirmed right of permanent residence, the statutory excuse lasts for the duration of the employment according to current guidance. For family members with an extended right of residence, the statutory excuse lasts until their Biometric Residence Card issued by the Home Office expires, or until the date confirmed in an online right to work check.

It is not clear yet what right to work checks employers will need to undertake for future employees who start work between 1 January 2021 and 30 June 2021, where they are eligible to apply under the EUSS but have not yet been granted status under it. It is also unclear whether employers will be required to verify at any point that an employee who started work before 1 July 2021 continues to have the right to work in the UK beyond the deadline to apply under the EUSS on 30 June 2020. We need urgent clarification on this from the Government and will let our clients know as soon as we have it.

Currently, an employer can signpost employees towards information relating to the EUSS and support them to apply. However, they cannot require an employee to provide evidence of applying for or being granted status under the scheme.

If, after the 30 June 2021 EUSS application deadline, an employer becomes aware that an EEA national employee or employee who is a family member of an EEA national has not applied for status under the EUSS or been granted British citizenship, then they cannot continue to employ them as they could potentially be prosecuted for knowingly employing an illegal worker. This would apply even if a compliant right to work check had been carried out before the commencement of employment.

For any individuals who first arrive to live and work in the UK from 1 January 2021, employers will generally need to consider visa options for them under the main UK immigration system, including under Tier 2 of the Points Based System. We can provide further support with this if required.

For further information or support on making EUSS applications or carrying out right to work checks, please have a look at our Immigration Solutions for HR..

Do employers have an obligation to ensure their employees have status under the EUSS?

Employers do not have any direct obligation to ensure this, but it is in employers’ interests that employees are given support and information in order to apply under the EUSS by the deadline, for the reasons explained at 1.

What tools are available to businesses to check their employees have status under the EUSS and therefore the right to work?

Status under the EUSS can be checked via the Government’s online right to work checking system.

In some (but not all) cases, non-EEA family members will also receive a Biometric Residence Card confirming their status under the scheme.

For employers who would like further support in upskilling their teams on this, please see our range of Immigration Solutions for Right to Work.

What happens to their rights if someone has settled status and then naturalises as a British citizen?

If someone becomes a British citizen then they are no longer subject to immigration control. This is the most secure British immigration status an EEA national or their family member can have. They must however check whether they are able to take dual nationality before embarking on a citizenship application and may also wish to take tax and estate planning advice.

With limited exceptions, acquiring British citizenship also means that a person can no longer rely on EU free movement law, for example to bring a family member to live with them in the UK. They would need to use the UK immigration system instead, which is more expensive and includes more limited options. Each situation should be assessed on a case-by-case basis, but it may be preferable for some people to defer applying to become a British citizen until after the UK stops observing free movement arrangements at the end of this year.  

If a person already has permanent residence status, do they have to apply and swap this for settled status?

Yes, they must still apply under the EUSS by 30 June 2021. However, they will not be required to swap their permanent residence for settled status if, instead of applying under EUSS, they have applied for British citizenship and have been granted it on or before 30 June 2021.

What is the impact if someone doesn’t apply under the EUSS?

Failing to apply under the EUSS by 30 June 2021 will have a significant adverse impact on an individual. They will cease to have any lawful UK immigration status, with the following implications:

• loss of the right to live, work and study in the UK

• potential removal from the UK

• exposure to hostile environment measures such as not being able to rent accommodation, access healthcare or hold a driving licence

• potential prosecution if they work illegally, which can result in an unlimited fine, up to six months jail and having their earnings seized

It is therefore essential that individuals who are eligible to apply under the EUSS do so by 30 June 2021. There is provision for late applications to be considered, but anyone who makes a late application will have no lawful immigration status in the UK between 1 July 2021 and the date of any grant of pre-settled or settled status.

Does an application for settled status have to be made after five years’ residence or is it automatically converted?

There is no automatic conversion and a separate, second application must be submitted. This must be done before the expiry of the pre-settled status at the latest. Normally a person will become eligible for settled status after a continuous period five years’ residence in the UK. This date will be earlier than the expiry of pre-settled status (and in some cases substantially earlier). The Home Office will not issue any reminders about the earliest date a person can apply, so this date should be identified and diarised.

If the person is not eligible to apply for settled status before their pre-settled status is due to expire, e.g. due to excess absences from the UK, then they would need to make a further application under the UK Immigration Rules if they want to continue to stay lawfully in the UK.

Where a person has spent more than six months outside the UK in any 12 months in the lead-up to 30 June 2021, depending on the reasons for the absence, it may be beneficial for them to apply again for pre-settled status before 30 June 2021, so that they are issued with a fresh five-year period of leave. The Home Office has not published any specific policy on how absences due to the COVID-19 pandemic will be treated, however it is possible they could be ignored.  

What is the deadline for swapping permanent residence to settled status – is it 30 June 2021?

Yes – all eligible individuals with permanent residence status must submit their applications under the EUSS for settled status by 30 June 2021. This includes people who have applied for British citizenship but who have not been granted it by this date.

From January 2021, if an employee with settled status asks to (for example) extend their holiday in their home EEA country by working at home there for a couple of weeks, maybe to spend time with their family, is a visa or something needed to be able to do that. Would the current A1 certificates not be valid?

A visa would not be required in this situation. Once someone has settled status in the UK, they can spend up to five consecutive years outside of the UK without it affecting their UK immigration status (four years for Swiss nationals and their family members).

Separate advice would need to be obtained about the validity of an A1 certificate in these circumstances.

Would a County Court Judgment count as a fail towards the good character test for British citizenship?

Potentially yes, we would need to have further details to give specific advice.

Has the EUSS app now been moved to iPhone?

The ‘EU Exit ID Document Check’ app was initially only available on Android devices. It is nowavailable for Apple devices too. 

On what grounds might pre-settled status (or settled status be declined?

 There are various grounds to refuse an application under EUSS, which are broadly categorised under eligibility and suitability.

Eligibility requirements include substantive and documentary requirements. For instance, an application for settled status may be refused if the applicant does not meet the five-year continuous residence requirement or one of the exceptions to this. An application could be refused if the applicant cannot provide acceptable evidence of their EEA nationality or their family relationship to an EEA national.

Suitability requirements include factors such as:

• deception in making the application, e.g. submitting false or misleading information, representations or documents

• being subject to an order or decision that requires them to leave the UK or bars them from entering the UK, e.g. a deportation order or exclusion decision

• on EU law public policy, public security or public health grounds, or on the UK law ground that refusal is conducive to the public good – this includes a consideration of the person’s criminal history as well as other poor conduct

Do EEA nationals have to apply for a work visa before arrival if they are coming to the UK on or after 1 January 2021?

The Immigration Rules currently allow for individuals to switch into a Tier 2 visa from various immigration categories within the UK. If an individual is ineligible to switch into Tier 2, they will need to apply for a visa before they travel to the UK.

Currently, it is not possible to switch from visitor status to Tier 2 from within the UK (leaving aside current concessions relating to COVID-19). However, there are indications from the Government’s policy statement on the new immigration system an EEA national may be able to enter as a visitor and apply for a Tier 2 visa once in the UK. They would however not be able to start work until the Tier 2 application has been granted.

For Tier 2 applications, what is the general salary threshold test and the occupational-specific salary threshold test?  

There are two main salary thresholds for Tier 2 General and, of the two, it is the higher salary threshold that must be satisfied to be granted the necessary points for the application to be successful.

1. General threshold – this is currently set at £30,000 for Tier 2 but will be lowered to £25,600 under the new system
2.  Appropriate rate threshold – this can be found by checking the Standard Occupational Classification Code (SOC) Code in Appendix J to the Immigration Rules for the occupation that most closely resembles the job on offer.

Different thresholds will apply in some cases now and under the new system, for example for ‘new entrants’ to the workforce, and for intra-company transferees.

Does the end of the transition period mean all current EEA nationals working for an employer will need to be sponsored on a Tier 2 from 1 Jan 2021?

No. Any EEA national employees who start residing in the UK before 31 December 2020 can and should apply to regularise their status under the EUSS. Any new arrivals to the UK from 1 January 2021 are likely to have to apply for a visa under the UK’s Immigration Rules, which will be a much more costly and onerous process for the employer.

How much will a Tier 2 (General) application cost?  

 Ignoring cost exemptions/reductions that apply in limited cases, the breakdown of costs for a typical 5-year Tier 2 General visa (no dependants) is currently approximately:

• Application fee – £1,220 from abroad or £1,408 from within the UK

• Biometric enrolment fee – £19.20

• Certificate of Sponsorship fee – £199

• Immigration Health Surcharge – £2,000 (rising to £3,120 from 1 October 2020)

• Immigration Skills Charge – £5,000/£1,820 (depending on the size of company)

• Priority fees (not mandatory) – £300/£500

Will restricted CoS still be approved by the panel on the 5th of each month?

The cap on Tier 2 visas will be removed from 1 January 2021 but we do not know for certain how the Home Office will still operate the system of requests for restricted certificates in the lead-up to the changes come into force. We expect to see more announcements from the Home Office in the coming months.

Will EEA nationals coming to the UK on a secondment after 31 December 2020 require a Tier 2 visa?

Potentially, yes. If they are not eligible for status under the EUSS due to previous residence in the UK, then an employer will have to consider visa options under the UK immigration system. This will involve considering Tier 2, or possibly routes such as a Tier 5 Youth Mobility Scheme visa if they are under the age of 31.

What are the options for the cultural/arts sector where an organisation is managing celebrities?For any individuals travelling into the UK before 31 December 2020, we would recommend that they apply under the EUSS for pre-settled status. This will provide some flexibility to continue travelling in and out of the UK as required for a 5-year period.

Holders of pre-settled status can be absent from the UK for two consecutive years without losing their status, but they will need to consider the inability to meet the continuous residence requirements for settled status at the end of the 5-year period. At that point, they would potentially need to qualify under the new immigration system in order to re-enter/remain in the UK.

For EEA nationals under the age of 31, a Tier 5 Youth Mobility Scheme visa may be an alternative suitable option. 

Are health care assistants covered by the planned NHS visa route?

We do not know for certain yet. We are awaiting the full rules and guidance to be announced and we will publish an update once we have them.

Will there be a fee for Intra-Company Transfers (ICTs) visas?

 There will not be a government fee to add an ICT licence to an existing sponsor licence. However, each individual ICT visa application will have associated government costs – please see the breakdown of fees provided at 17.

Some skilled professions are predominantly self-employed, which is permitted under Tier 2 General. Will the new system allow sponsors to sponsor on a self-employed basis?

We are not aware of any change to the current policy on this point. However, the Home Office has not yet published the relevant Immigration Rules or accompanying guidance, so this will need to be checked once these are available.

Can dual nationals use their alternative passport to apply for visa status?

It would depend on what nationality they have. From 1 January 2021, all people who do not have the right of abode in the UK will be subject to the same Immigration Rules, however there will still be some advantages of holding one nationality in comparison to another. For example, non-visa nationals can come to the UK for visits and a small number of other reasons without having to get a visa from abroad. It is expected that EEA nationals will be given non-visa national status. There are also some immigration routes that are only open to certain nationalities, such as the Tier 5 Youth Mobility Scheme and UK ancestry. It is anticipated that EEA nationals may become eligible for the Tier 5 Youth Mobility Scheme, however it is not yet known whether this will apply to all EEA nationals or only nationals of countries that the UK concludes a bilateral agreement with.

The Home Office would also expect applicants to declare all their nationalities on a visa application form. 

If a UK employee needs to travel into the EEA to visit suppliers, do they need a visa?

From 1 January 2021, UK nationals will be considered as ‘visitors’ once they travel to the continent. They will need to ensure that at the time of entry their passport has at least six months’ remaining validity. The six month period must be calculated ignoring any period of time the passport is valid for in excess of ten years. They must also keep within the limits of visits to the Schengen area, i.e. spending no more than 90 days in each 180-day period. They will also need to ensure they only undertake activities which are allowed as a visitor.  Business meetings such as ‘visiting a supplier’ are permissible as a visitor so this should be fine. However, UK nationals will not be able to ‘work’ without visa permission in the country they are travelling to.

Before travelling, they will also need to get authorisation under the European Travel Information and Authorisation System (ETIAS), which is due to be introduced during 2021. ETIAS authorisation will cost €7 and lasts for three years.

 

Related Item(s): Immigration, Immigration, BREXIT

Author(s)/Speaker(s): Joanna Hunt, Priya Gandhi,

Attachment: Lewis Silkin Brexit and the UKs New Immigration System Update QAs

Lewis Silkin is pleased to announce that 15 lawyers are listed in this year’s edition of Who’s Who Legal 2020: Labour and Employment – more than double the number of UK lawyers listed from any other law firm.

Text:

Carolyn Soakell, Colin Leckey, Hannah Price, James Davies, Lucy Lewis, Michael Anderson, Michael Burd, Nicholas Hadaway, Richard Miskella, Russell Brimelow, Sean Dempsey, Steven Lorber and Toni Lorenzo all made the list for Lewis Silkin as Global Leaders in England and Wales alongside Síobhra Rush in Ireland and Kathryn Weaver in Hong Kong. With 13 lawyers listed in England & Wales, Lewis Silkin has more than double the number lawyers who are rated in the UK than any other law firm.

Who’s Who Legal is a respected journal listing top private practice lawyers with proven track records in representing and advising management on all aspects of labour, employment and benefits law, identified through comprehensive, independent research and the opinion of other leading lawyers and peers in each jurisdiction.

Nine of our lawyers are listed as Thought Leaders in employment law, with immigration partner Andrew Osborne also listed as a Thought Leader in corporate immigration. Chair of the firm Michael Burd is once again listed as a Global Elite Thought Leader for the EMEA region.

Additionally, earlier this month, four of our employment partners –  Michael Burd, Russell Brimelow, James Davies and Nicholas Hadaway – were listed in Best Lawyers International 2020, a leading US directory focused on identifying top practitioners.

 

Related Item(s): Employment, Irish employment law, Employment law in Hong Kong

On 1 July 2020 the UK government announced its commitment to establish a new visa scheme for all British National (Overseas) persons and their dependants. This will provide a readily available opportunity for millions of residents of Hong Kong to move the UK far more easily than those routes currently open to them.

Text:

It is currently only for British Nationals (Overseas) (“BNOs”), as well as their dependants. BNOs are those persons who were British Overseas Territories Citizens from Hong Kong and registered to become BNO by 30 June 1997. It is no longer possible to become a BNO if you are not already. There are currently estimated to be about 2.9 million BNOs in Hong Kong.

Eligibility for the main applicant under the new visa category will be based primarily on simply being a BNO without any prohibited criminal history or character-related concerns. The government announcement states that dependants will need to be usually resident in Hong Kong to qualify. Further requirements may be introduced as the scheme comes to fruition, but we would expect these to be relatively easy to meet otherwise the purpose of the scheme would be defeated. The visa will be granted for a five-year period and allow the holder to work or study in the UK. They can then apply for indefinite leave to remain (“ILR”) after five years continuous residence in the UK on the BNO visa.

Registration as a British citizen will be available for BNOs after a further one year holding ILR and meeting certain requirements regarding absences and good character. It is not yet clear whether citizenship for dependants will be by registration or naturalisation. If dependants aged 18 or over are required to naturalise, then they would additionally need to meet a Life in the UK and English language test assessment. For child dependants aged under 18, the existing laws for registration will likely be applied.

The five-year visa has been described as “special and bespoke”, honouring the UK’s historic commitment to Hong Kong and in light of the recently introduced security laws being passed by China which have deeply troubled the UK.

The implementation of the new visa route is likely to be streamlined and efficient, utilising the technology and experience of the Home Office’s settled status team. This team has already completed approximately 3.6 million applications for EEA nationals and their family members who needed to be brought under UK law as a result of Brexit. That project will soon be reaching its end as EEA nationals only have until June next year to apply and will likely wish to have their status before 1 January 2021 when EEA Free Movement ends.

The details of the BNO visa are yet to be determined, however a press release issued by the government confirms this will be “in the coming months”. In the meantime, individuals who wish to be able to enter the UK for an initial period of six months under a BNO passport and to avail themselves of British consular assistance when they are outside of the UK, China, Hong Kong, and the Macau Special Administrative Region may need to apply for this. Her Majesty’s Passport Office is already seeing a significant increase in applicants for BNO passports and it is important to get the application correct to avoid unnecessary delays. It is not yet clear whether a BNO passport will need to have already been issued to a main applicant under the BNO visa route, or if alternative evidence of BNO citizenship will suffice.

A further point requiring clarification is whether an application fee will be charged for the visas and if so at what level. It is anticipated that application fees will be applicable for citizenship applications. Currently these are £1,206 for BNOs registering as a British citizen, £1,330 for naturalisation and £1,012 for child registration. A biometric enrolment fee of £19.20 must also be paid for citizenship applications.

If you are not a BNO citizen or eligible dependant, there are other visa options that could be of assistance.

What if I am not eligible for the BNO scheme?

The most common routes to the UK for Hong Kong residents are Tier 2 sponsored work visas and Tier 4 student visas. There are other routes such as those linked to familial connections such as an EEA or British spouse, investment routes such as the Tier 1 Investor requiring £2 million to invest in the UK or the Representative of the Overseas Business visa for those who wish to set up a new outpost in the UK of an overseas business. 

Tier 2 is the most common work-based visa and around 27,000 are issued each year. It requires a job offer from an employer willing to sponsor the individual. The job must meet a minimum skill and salary level amongst other requirements. But the downside for individuals is that they can only work in the job their visa has been issued for which can be somewhat restrictive. For individuals who are truly exceptional in their field, the Global Talent visa provides freedom to work for yourself or for any employer within your field though it is a much more difficult visa to obtain with around 1,200 approvals in the last 12 months.

From Hong Kong in particular, there are a large number of applicants for Tier 4, the UK’s student visa. This requires sponsorship from the relevant educational provider. It also requires significant funds to be held to prove course fees and personal maintenance can be met. Unfortunately, it is very much a temporary visa and does not lead to a permanent status in the UK unless you are able to live in the UK legally and continuously for at least ten years with absences less than 540 days over the entire period, and no single absence of more than six months.

Given the complex and bureaucratic nature of the UK immigration system, there are many pitfalls that are easy to fall into. When under pressure and looking to obtain a visa in order to provide options in uncertain times, using authorised experts from the UK may take away some of the anxiety around applying. If you have any queries or need help with making an application, please contact Kathryn Weaver or Naomi Hanrahan-Soar.

 

Related Item(s): Immigration law in Hong Kong, Asia Pacific Region, Immigration & Global Mobility

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

Covid-19 is causing many employees to ask if they can work from “home” for an extended period in an overseas country – for example, because it is their home nation or their family is based there. This article explains the potential legal issues and how to avoid the traps.

Text:

Employers should consider a variety of issues, including tax, social security, immigration and employment implications, before agreeing to an employee’s request to work from home when “home” is not in the UK. We look at each of these issues below before explaining what practical steps you can take to minimise the risks.

Tax and social security implications of working temporarily abroad

From a UK perspective, unless the anticipated duration of the stay is so long that it may impact tax residency (see below), the UK employer should continue to deduct income tax under the PAYE system in accordance with the employee’s PAYE code notwithstanding that the employee is temporarily working overseas. In addition, the employer should continue to deduct employee national insurance contributions (NICs) and pay employer NICs.

You will need to consider, however, whether the employee’s stay in the host country creates risks of income tax or social security liability in that country – or even the risk that you (as the employer) are regarded as having created a permanent establishment there. Several tax authorities have issued concessions in the light of Covid-19, but not all have done so, and it will be important to establish the rules in place in the relevant host country. We briefly outline the issues below.

Income tax may be payable in host country if employee becomes tax resident

The starting point is that the host country has primary taxing rights over the employment income that the employee earns while physically working in that country. However, if there is a double tax treaty (DTT) between the UK and the host country, the employee may be exempt from income tax there if certain conditions are satisfied, including that the employee is not a tax resident in the host country.

The employee’s residence status is determined in accordance with the DTT by reference to their personal circumstances, and whether the number of days they are present in the host country over a 12-month period (however briefly and irrespective of the reason) exceeds 183 days.

The UK has a DTT with most countries, including all 27 EU countries and most other major world economies. In practice, this means that a short stay abroad in many locations is not going to result in the employee becoming liable for host country income tax.

Remember, though, that employees who have already spent other periods in the host country in the same 12-month period (e.g. visiting family) may reach the 183-day threshold sooner than you think. Also, the full details of the conditions can differ from DTT to DTT (particularly the period over which the 183-day test must be satisfied), and the employer and/or employee may still have obligations in the host country even if the DTT applies. (For example, the employer may need to register with local authorities as an employer and/or report on the income that is being paid to the employee.). It is therefore important to understand the local position.

If the employee does become subject to tax in the host country but remains UK tax resident, they will remain subject to UK income tax on their worldwide income but should be able to obtain credit for some or all the tax they pay in the host country. They will, however, need to complete the appropriate tax declarations, which could be a complex process.

Social security position is complex and depends on what agreements are in place

The general rule is that employee and employer social security obligations arise in the country in which the employee is physically carrying out their duties.

In the European Economic Area (EEA) and Switzerland, there are currently exceptions to this general rule which allow a UK employee and their employer to continue to pay UK NICs and not pay social security contributions in the host country if certain conditions are satisfied. It is crucial to obtain an A1 (or E101) certificate from HMRC (or the social security authorities in the employee’s country of residence if different). Note that these rules are due to expire on 31 December 2020, when the current Brexit implementation period ends, and it remains to be seen whether there will be a trade agreement between the UK and EU which will replicate any of these features.

Outside the EEA and Switzerland, the position will depend on whether there is a reciprocal agreement between the host country and the UK. In countries where there is a reciprocal agreement, such as the USA or Japan, it is possible for an employee to remain within the UK system (and not pay local social security contributions) for up to five years if they have a valid certificate of coverage.

In other countries where no agreement exists, the UK employer must continue to deduct employee UK NICs and pay employer NICs for the first 52 weeks. Further, depending on the social security regime that is in place, there may also be a liability to pay social security contributions in the host country in addition to any contributions that are made in the UK.

Risk of creating a permanent establishment is low but should be considered

In some situations, there will be a risk that the employee’s activities or presence in the host country will create a permanent establishment for the employer in that country. 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 name of the employer while in the host country.

If a permanent establishment is created, the profits attributable to that establishment would be subject to corporate tax in that country. It would also mean that the income tax exemption in the DTT would not apply. While this may be less of a problem if you already have established operations in the host country, it could be a real headache if you do not.

Assuming the working-from-home arrangement is only short term, it would be difficult for the tax authorities to argue that a permanent establishment had been created. The longer the arrangement continues, however, the greater the risk – particularly if the employee routinely negotiates the principal terms of contracts with customers which are simply “rubber-stamped” without amendment by UK employees.

Immigration implications of working abroad temporarily

Immigration permission is generally not required for business visits. Depending on the employee’s activities, it may be possible to characterise their stay as a business visit – for example, if their activities are limited to those typically undertaken during business trips (e.g. meetings and training). However, restricting an employee’s activities in this way is unlikely to be practical for many employees and, in general, the longer an employee works without permission, the more difficult it will be to characterise their stay as a business visit. In some countries, work itself is prohibited even as a business visitor.

Currently, if the employee is a UK or EEA national, they have the right to live and work in an EEA country (although this position will change for UK nationals from 31 December 2020 when the current Brexit implementation period ends).

If an employee is not an EEA national and/or wishes to work from a non-EEA country, you will need to consider what restrictions may be in place. For example, if they want to work in Hong Kong but don’t have permission to stay there indefinitely, they should not undertake any work without permission, even for a limited period and even if the employing entity is not a Hong Kong entity. As with tax and social security, some countries have implemented emergency Covid-19 legislation that will affect the normal immigration position, but this is not the case everywhere.

You may also need to consider any immigration issues that could arise on the employee’s return to the UK. For example, EU nationals should consider whether to secure settled or pre-settled status in the UK before they travel overseas. Other non-British nationals should consider whether their absence from the UK may affect their visa, or their eligibility to apply for other types of status in future where absences are assessed, such as indefinite leave to remain, permanent residence or naturalisation as a British citizen.

Employment law and data privacy implications of working abroad temporarily

On top of the tax, social security and immigration implications explained above, there are various other employment law and data privacy considerations.

Mandatory employment protections may apply

If employees live and work abroad, even for short periods, they can become subject to the jurisdiction of that other country and start to benefit from the applicable local mandatory employment protections. These may include minimum rates of pay, paid annual holidays and – perhaps most importantly in the event of a dispute – rights on termination. What protections, if any, an employee acquires will depend on the country in question. 

Within the EEA, there is also the Posted Workers Directive (PWD) to consider. This applies where an employee is “posted” from one undertaking or establishment to another cross-border within the EEA (and, until 31 December 2020, the UK). Changes to the PWD, which must be implemented by the end of July, mean that employees will be entitled to the same mandatory pay as comparable employees in the host location.

The PWD itself was not designed to cover the situation of an employee working from home temporarily in another EEA country, and it would not be directly engaged unless you opt for a formal secondment to a local group company or ask the employee to work on a contract for a local client. However, the local implementation of the PWD may nonetheless end up capturing this situation.

For example, in Belgium the local implementation of the PWD requires that all employment, remuneration, working terms and conditions and collective bargaining agreements that have been declared generally binding apply as of day one to any employee working temporarily in Belgium. This is also true of the UK, where employees have certain minimum statutory rights from day one. This can be a complicating factor, particularly if a dispute or termination scenario arises and the employee asserts that they have employment rights in another jurisdiction.

Be careful about transferring data

If an employee’s role involves processing personal data, this could give rise to data protection issues, especially if the employee is requesting to work from a country outside of the EEA which is not subject to the General Data Protection Regulation and other EU data privacy laws.

Local health and safety protections may apply

UK employers have a duty to protect the health, safety and welfare of their employees, which includes providing a safe working environment when they are working from home. If an employee works from home abroad, you should also ensure that it is compliant with any local health and safety requirements. For example, in the Netherlands, employers must provide employees with the equipment needed to ensure a safe working environment which in some cases might involve making a contribution or purchasing relevant equipment.

Employees will also need to comply with applicable public health guidance (e.g. quarantine periods) both in the host country and on their return to the UK.

How to minimise the risks

Given the current situation, you will no doubt want to be flexible when it comes to accommodating requests to work from home overseas, but you will also want to minimise the risks. Depending on how many requests you expect to receive, you may even want to consider developing a short policy to ensure that these situations are dealt with consistently and fairly. It is possible that you will receive more such requests in future, as employees look to take advantage of increased remote-working opportunities to ask if they can work abroad for a short period on a regular basis.

The key practical steps for minimising the risks are as follows:

• Only accept requests if the employee’s role can be performed effectively remotely and can be done lawfully from the country in question.

• The shorter the period the employee is working abroad, the smaller the risks are likely to be. Consider only approving requests for a short, time-limited duration where the employee’s expected return date is clearly documented.

• Always take expert local advice on any tax, social security, immigration and employment obligations you may have in the host country, and on any Covid-19 concessions that have been issued. The employee may also need their own advice.

• Much will depend on the identity of the host country and the nationality of the employee. For the time being, working in the EEA is generally more straightforward but this will change after 31 December 2020 when the Brexit implementation period comes to an end.

• Check what data processing the employee will be doing, and that this can be carried out lawfully in line with your usual policies.

• Agree the terms of any temporary overseas working arrangement and record them in writing. Ideally, these should clarify that:

• the employee will be liable for any additional income taxes or employee social security which may be charged because of their decision to work for a short period in an overseas location (and that the employer is authorised to make additional deductions or seek reimbursements, if necessary, for this purpose)

• the employee will be responsible for any personal tax declarations that may need to be made

• the employment contract remains subject to UK law and jurisdiction

• the employee is still working solely for the UK business

• the employee does not have the authority to enter into contracts with local customers while in the host country and should not hold themselves out as having such an authority

• the employee takes responsibility for ensuring they have the necessary technology and arrangements in place to enable them to work effectively

• the employee accepts that they are working from home at their own risk and that the employer will not be liable for any loss they suffer due to their request being approved

• the employee must comply with all applicable public health guidance in both in the country to which they travel and in the UK.

Related Item(s): Employment, Covid 19 – Coronavirus, Employer & employee relations, Immigration & Global Mobility, Tax for Employers & Executives, Workplace Data Privacy

Author(s)/Speaker(s): Colin Leckey, Rosie Moore,

Windrush Day is a time to celebrate the substantial and ongoing contribution of the Windrush Generation and their descendants, who helped to rebuild the UK after the second world war and who have influenced our social, cultural and political landscape ever since. It is also a time to reflect on righting the wrongs of the Windrush scandal and to focus on the fight against racism.

Text:

Windrush Day was only established in 2018, on the 70th anniversary of the arrival of the HMS Empire Windrush at Tilbury Docks in Essex. This happened after a successful petition by the campaigner Patrick Vernon.    

Almost all of the Windrush Generation are of black Caribbean origin. Although they were originally asked to come to the UK to as citizens of the UK and colonies, with the same legal rights to live and work in the UK as those born here, on arrival they faced significant race discrimination and limitations on their opportunities, being described in official documents on early Caribbean migration as ‘coloured colonial labour’. Many ended up taking up essential but low-paid jobs in sectors such as healthcare, transport, manufacturing and construction, despite having previously worked in more skilled positions. 

When the Immigration Act 1971 came into force at the beginning of 1973, the Windrush Generation were classified as having the right of abode in the UK and they continue to have the right to live and work in the UK up until now. They were not given any evidence of this status, nor did the Home Office keep records. Some did obtain evidence over time, however many did not. 

Those without evidence of their status started to have their lives turned upside down as initiatives to tackle illegal migration were rolled out over time, and in particular with the implementation by the Government of ‘hostile environment’ measures from 2012. These required (and still require) individuals living in the UK to provide evidence of their lawful immigration status in the context of areas such as employment, accessing accommodation and healthcare, and when consideration is being given to entry to the UK, detention, removal or deportation. The results of these measures were devastating, with people losing their livelihoods and pensions, their homes, their sense of identity and security, and their ability to be with their family. In the case of those denied cancer and other critical healthcare, people literally lost their lives. 

The situation did not receive much attention from the Home Office until April 2018, when the Guardian newspaper ran front page stories on it for two consecutive weeks, sparking a worldwide media response and setting off a chain of events that ultimately forced the Home Secretary, Amber Rudd, to resign.  A Windrush Taskforce was set up at the Home Office to provide members of the Windrush Generation with free documentary evidence of their status. A review of historical cases was carried out, a hardship fund and compensation scheme were established and an independent review was commissioned to identify key lessons for the Home Office. 

The review by Wendy Williams was published in March this year, and although it falls short of finding institutional racism within the Home Office, the independent reviewer stated that its failings showed an ‘institutional ignorance and thoughtlessness towards the issue of race and the history of the Windrush generation within the department, which are consistent with some elements of the definition of institutional racism’. 

Windrush Day is important, because aside from being a celebration, it provides an opportunity to reflect on what progress has been made to provide redress to the Windrush Generation following the Windrush scandal, and to renew efforts to ensure the measures put in place are made effective. The Windrush lessons learned review report notes that although the National Audit Office estimated in its report on Windrush that there might be up to 500,000 people in the UK who may have difficulties documenting their status, the Windrush taskforce had only issued documentation to 8,124 people as at September 2019. There had been 1,108 claims but only 36 payments made under the compensation scheme by 31 December 2019, amounting to £62,196. Clearly further substantial work needs to be done. 

Racism in the UK is real and invidious. It affects the perceptions and actions of our parliament, our civil service, our businesses and private individuals. In relation to the Home Office and the Windrush scandal, the independent reviewer found that ‘(t)he department has failed to grasp that decisions in the arena of immigration policy and operations are more likely to impact on individuals and the families of individuals who are BAME, who were not born in the UK, or who do not have British national origins or white British ethnic origins’.  

If real and lasting change is to occur in removing the less favourable treatment and detriments experienced by the BAME members of our society, including the Windrush Generation, it is incumbent on all of us to educate ourselves on the UK’s history and in particular the structural inequalities generated from its colonial past. We must also become more sophisticated in being able to identify and speak out against racism, as well as taking action in our own professional and personal capacities to address it.  

Related Item(s): Immigration

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