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.

Text:

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.

Text:

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.

Text:

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,

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:

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.

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.

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