You will likely hear a lot about “seats” when applying for training contracts. This just means the Legal Practice Group (LPG) you will be “sitting in” for a period of time.

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During a typical training contract at Lewis Silkin, a Trainee will experience a variety of LPGs by rotating between them during the two years. This allows you to gain as much experience as possible, and helps you decide which area of law you might like to qualify into at the end of your training contract.

At Lewis Silkin, we typically rotate around four LPGs, spending six months in each area.

At Lewis Silkin we have eight seat options:

(1) Corporate,

(2) Data,

(3) Digital, Commerce, and Creative,

(4) Dispute Resolution,

(5) Employment,

(6) Immigration,

(7) Intellectual Property Disputes, and

(8) Real Estate.

Sometimes there may also be the opportunity to go on a Client Secondment for 3 – 6 months, where you’ll work in-house on a placement to a client’s legal team. For more on Secondments please see our blog here. Although you’ll be asked to submit your choices of the LPGs that interest you the most and HR will try their best to ensure you are placed there, this is not guaranteed (although we tend to get one of our top choices each time!). It should be noted that you will also have to do one contentious seat throughout the period of your training contract. You’ll have the choice of either Dispute Resolution, Intellectual Property Disputes, or Employment (within the Employment, Litigation, and Financial Services sub-team).

Seat Rotation at Lewis Silkin

Before starting my training contract at Lewis Silkin, we attended a session where each LPG explained a bit more about what they do, the typical work a trainee would get involved in, and the types of clients you might get to work with.

Following this, I had an initial meeting with HR to map out what I would like my training contract to look like, including the LPGs I was keen to spend six months in, and the ones I didn’t have as much of an initial interest in. None of this is set in stone but it helps HR get an early idea of how to plan seat rotations. It is also helpful to mention any LPGs you definitely want to try as a priority.

Once you start your training contract, you will inevitably gain a greater understanding of what each LPG does, as you will likely have peers within each group. It’s fairly common to change your mind about which LPGs interest you from that initial conversation with HR. In my opinion, this is the best thing about a training contract, as you get the opportunity to discover which areas of law interest you (which often ends up being quite different from what you initially thought it maybe!).

We have regular catch ups with HR to discuss our thoughts on our current LPG, and where we would like to go next. HR will then organise rotation for the next seat. I’ve been fortunate to try out every LPG that I asked for, and overall this has been the case for all trainees in my intake!

Tips

It can be quite daunting deciding where you would like to spend the next 6 months of your training contract so hopefully these tips will help:

(1) Stay open minded: you may think when you start your training contract that you know exactly what seats you would like to do, but it’s best to stay open minded about your choices and allow yourself to change your mind once you find out more about an LPG.

(2) Do your research: there is no better way, from my experience, to find out whether an LPG would interest you, than by discussing with your fellow trainees the types of work they are getting involved with.

(3) Communicate with HR: if you change your mind, communicate this to HR as soon as possible, to give you the best chance at getting the LPGs you want.

Type: Trainee Stories

Related Item(s): Trainee Stories

Author(s)/Speaker(s): Amy Earnshaw,

We have produced a useful factsheet for individuals navigating the Skilled Worker visa route.

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Purpose and conditions

This visa route is designed for individuals who have been recruited to work in the UK in a specific job. The job offer must be from a Home Office approved sponsor, and for an eligible skilled occupation.

A Skilled Worker can work in the UK for their sponsor in the job they have been approved to fill They can also take limited supplementary employment in the same occupation at the same level, or in a shortage occupation, if this is outside their normal working hours and for up to 20 hours a week. They may also do voluntary work and study in the UK.

Eligibility requirements – points test

The applicant must meet a specific set of requirements for which they will score points. Some of these requirements are mandatory, others are ‘tradeable’.

Mandatory points

The applicant must score 50 mandatory points from the table below.

An offer of a job from a licenced sponsor (20 points)	The employer must be a Home Office approved sponsor licence holder for the Skilled Worker route. There must be a genuine vacancy. The applicant must have a Certificate of Sponsorship (electronic work authorisation assigned by licenced sponsors), which contains the details of their job offer.
The job must be at or above the minimum skill level  RQF 3 (20 points)	The job must be skilled to at least A-Level or equivalent and listed by the Home Office as an eligible occupation. The Home Office must accept that the occupation selected by the sponsor accurately reflects the job the applicant has been offered.
Ability to speak English language to an approved standard (10 points)	The minimum level is CEFR Level B1 in all four language elements: reading, writing, speaking and listening. The applicant can demonstrate they meet this requirement in a range of ways, including (but not limited to) being from a majority English-speaking country, holding a degree taught in English or passing a Home Office-approved English language test.

 

Tradeable points

The applicant must score 20 points using one of the options in the table below. The going rate for the occupation below means the minimum salary for a specific job type as listed by the Home Office.

Minimum salary threshold	The salary must be at least £26,200, £10.75 per hour or the going rate for the occupation, whichever is higher.
PhD relevant to the role	The salary must be at least £23,580, £10.75 per hour or 90% of the going rate for the occupation, whichever is higher.
STEM (science, technology, engineering or maths) PhD relevant to the role	The salary must be at least £20,960, £10.75 per hour or 80% of the going rate for the occupation, whichever is higher.
Job listed on ‘shortage occupation list’	This is an exhaustive list of jobs for which the Government accepts there are labour shortages. If the job is in a shortage occupation, the salary must be at least £20,960, £10.75 per hour or 80% of the going rate for the occupation, whichever is higher.
New entrant to the labour market	The applicant will be considered a new entrant if they: Have held UK immigration permission under the Student, graduate or Tier 1 (Graduate Entrepreneur) routes within the last two years, have completed an eligible course (or are within three months of completion), or have completed at least 12 months of a PhD; or Are under 26 on the date of the application; or Are working towards recognised professional qualifications full registration or chartered status with the professional body for the occupation, or moving directly into a listed postdoctoral position. The salary must be at least £20,960, £10.75 per hour or 70% of the going rate for the occupation, whichever is higher. NB an individual can only have up to four years’ UK immigration permission as a new entrant.
Listed health and education jobs	The salary must be at least £20,960 or the going rate for the occupation, whichever is higher.

 

Non-points based eligibility criteria

To be eligible under the Skilled Worker route, in addition to meeting the points test, the applicant must:

• Meet suitability criteria in terms of their previous immigration compliance, any criminal history or other character-related issues;
• Hold a certificate confirming they do not have active TB, if they have been living in a high-risk TB country for at least six months before they apply;
• Meet a financial requirement through holding at least £1,270 in savings or having their employer certify that they will be maintained up to this amount for the first month of their employment (this requirement does not apply if they have been living in the UK for at least 12 months already);
• If their job is in a listed health or education occupation, provide criminal record certificates for all countries they have lived in for more than 12 months in the last ten years.

Length of immigration permission

A certificate of sponsorship can be assigned for up to five years at a time under the Skilled Worker route, with immigration permission being granted to expire 14 days after the end date of the certificate of sponsorship.

Extensions and switching

If the applicant is already in the UK on another type of visa, they can switch to Skilled Worker visa with limited exceptions, e.g. if they are in the UK as a visitor or in another short-term immigration category. The individual can extend their Skilled Worker visa if they are sponsored by a sponsoring employer and meet all the necessary criteria. There is no limit on the number of extensions or length of time a Skilled Worker can spend in the UK. A Skilled Worker visa can be extended for up to five years at a time.

Settlement

Settlement is possible once the applicant has spent five
continuous years in eligible immigration categories. They must:

• Continue to meet suitability criteria;
• Be paid, for the foreseeable future, a minimum salary of at least £26,000 (or £20,960 in limited cases), £10.75 per hour or the going rate for the occupation, whichever is higher;
• Be required by the sponsoring employer to work for them for the foreseeable future;
• Pass the ‘Life in the UK’ test;
• Have less than 180 days absences in any 12-month period, with limited exceptions.

Dependants

A Skilled Worker can be accompanied or joined by their spouse, civil partner or unmarried partner (where they have lived together for at least two years) and dependent children aged under 18 when they first apply. Unless the dependant has been living in the UK for at least 12 months already, they will also need to meet a financial requirement of £285 for a partner, £315 for the first child dependant and £200 for each additional child dependant. Dependants must meet suitability criteria, and TB and criminal record certificates may also be required.

Dependants may also qualify for settlement either at the same time or after the Skilled Worker. Important points to note are that a partner dependant must complete five continuous years as the Skilled Worker’s partner dependant and must normally have less than 180 days absences in any 12-month period. Child dependants aged 16 or over must not be living an independent life. Any dependants aged 18 or over must pass the ‘Life in the UK’ test.

Visa application procedure

1. Certificate of Sponsorship

• This is assigned online by the sponsor via the Sponsor Management System.
• If the individual will be applying outside the UK, the employer will need to assign a ‘defined Certificate of Sponsorship. This is a two-stage process:

1. Sending an online request to the Home Office for permission to allocate a defined Certificate of Sponsorship. This should normally be granted within one working day, but the process may take longer if the caseworker requests further information. The purpose behind this step is to assess that the job is a genuine vacancy.

2. Once the defined Certificate of Sponsorship has been allocated, the employer can assign this and make a payment for Home Office fees.

2. Visa

• The individual will need to apply for the Skilled Worker visa within three months of their Certificate of Sponsorship being assigned.
• The application consists of the following stages:

1. Submitting an application form and supporting documents online, and making all the relevant payments;

2. Attending an appointment to enrol biometric information and to submit any outstanding supporting documents. An applicant attending an appointment abroad must normally do so at the nearest Visa Application Centre in their country of residence. An applicant who is already residing in the UK will need to attend an appointment at a UK Visa and Citizenship Application Service (UKVCAS) centre.*

* EEA nationals applying outside or inside the UK with a biometric chip passport do not need to attend an appointment if they have used the UK Immigration: ID Check app to verify their identity.

Non-EEA nationals applying from within the UK only can also use the UK Immigration: ID Check app to verify their identity.

Related Item(s): Immigration

Author(s)/Speaker(s): Andrew Osborne, Supinder Singh Sian,

The Home Office’s Immigration Enforcement team can issue an Information Request to any employer where employment of an illegal worker is suspected. This is a preliminary step to a potential civil penalty notice being issued, which can be up to £20,000 per illegal worker. It is important to handle these requests proactively because an employer who responds accurately and promptly may receive a reduced penalty or avoid it completely.

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Immigration Enforcement data reveals that almost 1,000 civil penalties were issued in 2022, costing employers a total value of £16million. Since then, the Home Office has announced plans to focus its attention on illegal working. We have been seeing substantially increased activity in this area in recent months.

In this article, we explain what the immediate next steps are for employers in receipt of an Information Request regarding a suspected illegal worker.

The civil penalty system

A civil penalty is a financial sanction of up to £20,000, issued by the Home Office to employers found to have failed to complete a compliant right to work check under the prevention of illegal working regime. The penalty is issued per illegal worker. Employers should be aware of the Home Office’s code of practice, which is considered by the Home Office when determining the amount of civil penalty for employing an illegal worker.

The consequences of being issued with a civil penalty can be far-reaching. If the employer is a sponsor licence holder employing overseas workers, they are at an increased risk of losing the licence. Those sponsored under the licence will have their leave shortened and must either submit a fresh visa application or leave the UK. The Home Office publishes reports on the recipients of civil penalties so what’s arguably worse is the negative press coverage that often follows, along with reputational damage and a hit on profits. An employer can also be at risk of potential criminal prosecution if they know, or have reasonable cause to believe that they are employing an illegal worker.

There are a number of stages to the civil penalty process, which the Home Office detail in an Employer’s guide to the administration of the civil penalty scheme. An Information Request is the precursor to a civil penalty. It should be seen as an opportunity for an employer to respond to the allegation and submit documentation in its defence.

What is included in an Information Request?

An Information Request provides an employer key information and deadlines. This helps employers determine who is impacted and how much time there is to collate evidence and respond.

The Information Request will ask the employer to confirm:

• The organisation’s details including whether it’s a sole trader or limited company, its trading and registered name and address, business owner or company director details etc.
• Alternative business details if the recipient is not the actual employer.
• The names of the suspected illegal worker(s) and their dates of birth.
• That right to work checks were completed and when these took place.
• If there are any reports made the employer if they suspected illegal working.
• If there is any supporting documentary evidence.

It will also confirm the date the alleged breach came to the attention of Immigration Enforcement and that evidence is being considered to confirm whether or not to issue the civil penalty and if so, for what amount.

What immediate steps should an employer take on receipt of an Information Request?

Seek legal advice
Although the Information Request contains instructions on how to respond, this is an opportunity to submit grounds to object and detail any mitigating factors, if applicable. Seeking legal advice from a specialist immigration practitioner may assist to ensure the request is dealt with in line with the Home Office’s guidance, and that any representations are put forward in the most effective way.

Promptly and accurately cooperate with the Home Office
An employer who actively cooperates with the Home Office, but who is later issued with a civil penalty, may have the amount reduced by £5,000. Active cooperation means promptly and accurately responding to questions and the Information Request by the deadline, disclosing any evidence, providing access to premises as well as recruitment and employment records. Employers should also be prepared to provide access to right to work processes and systems and be available during the investigation.

Check the right to work evidence
An immigration practitioner can help to assess whether a compliant right to work check was completed before employment commenced, and whether follow-up checks were also completed compliantly if relevant. They can also establish the legal basis for the employment such as the worker’s nationality and if they have been complying with their visa conditions, if relevant. If the employee does have the right to work, liability for a civil penalty is not established.
The illegal working regime contains safeguards that can protect employers and it may be the case that an employer has a statutory excuse against a civil penalty. Even if an employer discovers that they have been misled by an employee who actually does not have the right to work in the UK, they can retain the statutory excuse if they can demonstrate right to work check compliance.

Establish whether there is an employer-employee relationship
Illegal working legislation only covers individuals employed under a contract of service or apprenticeship. If the relationship falls outside of this, for example if the ‘employee’ is actually a self-employed contractor or an employee of an employment agency, then evidence of the correct relationship should be submitted. Note that determining employment status can sometimes be a vexed question as a matter of employment law, with the lines between contractors and workers/employees sometimes seeming quite blurred.

Consider speaking to the individual
The employer should take legal advice on whether it is appropriate to consider speaking to the individual to discuss their right to work documentation. The person may have another nationality or another document that they can provide to establish their right to work. Keep records of those conversations. The employer should give careful thought about how it handles these conversations, to minimise the risk of employment tribunal claims.

Submit an Employer Checking Service request
Depending on the circumstances, an employer may wish to complete an Employer Checking Service request. The employee must be informed before making the request. A ‘positive’ result will give the employer a fresh statutory excuse against illegal working. Be on alert that the request could return a ‘negative’ result, in which case steps should be taken to consider whether it is appropriate to cease employment until the issue is resolved. It is important to note that a ‘negative’ result does not necessarily mean that the employee does not have the right to work.
Legal advice should be sought before the employer makes any decision to terminate or suspend employment. Our view is that suspending the employee is, generally, unlikely to mark the end of the employer’s liability period, because they will continue to be an employee (even if they are not being paid). Obtaining up-front employment law advice would also help to guide the employer through a fair investigation and potential dismissal process, to mitigate the risk of employment tribunal claims for discrimination or unfair dismissal.

Up-front preparation can lead to the best outcome

The Home Office will consider the evidence. If there is clear evidence of illegal working, this will result in the issuance of a civil penalty. If the employer cooperates with the Home Office, the amount of the penalty may be reduced by £5,000. If the employer can establish that there is no potential liability, a ‘No Action Notice’ will be issued and the case closed.
If you have questions about illegal working or carrying out compliant right to work checks more generally, please get in touch with a member of our Immigration Team.

Related Item(s): Immigration, Prevention of Illegal Working

Author(s)/Speaker(s): Supinder Singh Sian, Tom McEvoy, Despina Stoimenidi, Pip Hague,

In new guidance, the Home Office has confirmed that hybrid and remote working locations must be reported for sponsored workers. Sponsors should review the work location information recorded for all sponsored workers and consider making updates on the Sponsor Management System as appropriate.

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This change is important because during the pandemic, the Home Office published guidance for sponsors confirming that they were not required to notify the Home Office about sponsored workers working from home due to coronavirus.

Many businesses switched to remote working during the COVID-19 lockdown periods, and then made temporary or permanent changes to their working arrangements afterwards. These changes may have been to the business’s office locations (including giving up permanent office premises) or to the location(s) and pattern of attendance for workers.

The updated guidance signals that permanent post-pandemic remote or hybrid working arrangements must be reported.

What has changed in the sponsor guidance?

Part 3 of the sponsor guidance for workers and temporary workers was updated on 31 March 2023 to include additional text on sponsors’ duty to notify the Home Office of a sponsored worker’s normal work location. Temporary changes in work location that are not part of a regular working pattern do not need to be reported.

The guidance confirms that where a worker’s normal work location (as noted on their Certificate of Sponsorship) changes, the sponsor must report this, including where:

• The worker is/will be working at a different site, branch or office of the sponsor, or at a different client site, and this has not previously been notified to the Home Office.
• The worker is/will be working remotely from home on a permanent or full-time basis (with little or no requirement to attend a workplace).
• The worker has moved/will move to a hybrid working pattern, i.e. they will work remotely on a regular and planned basis from their home or another address (e.g. a work hub space) other than a declared client site or address listed on the sponsor’s licence, as well as working regularly at a declared client site or an address listed on the licence.

Reports of changes to a sponsored worker’s circumstances must be made using the Sponsor Management System (SMS) within 10 working days of the change occurring. Due to the nature of this change in guidance, it is likely however that if sponsors now take action as soon as practicable to comply with it, the Home Office will take a pragmatic approach regarding late notifications. 

What actions should sponsors take?

Sponsors should review the work location details currently recorded on the SMS for their sponsored workers and make notifications as appropriate to ensure that all locations that are part of their regular working pattern are accurately reflected.

The guidance is silent on what consequences may flow from reporting that a worker is working from home on a permanent or full-time basis. Sponsors should be aware that the Home Office may query whether there is a need for the worker to be based in the UK where there is no requirement for them to physically attend a workplace, and should be ready to justify this on a case-by-case basis.

We will be covering the Spring updates to the Immigration Rules and sponsor guidance in our upcoming webinar, What’s happening in immigration law, on 3 May 2023. For further information and to sign up, click here. If you require advice on sponsor compliance in the context of hybrid or remote working, please get in touch with a member of our Immigration Team.

Related Item(s): Immigration, What’s happening in immigration law

Author(s)/Speaker(s): Supinder Singh Sian, Naomi Hanrahan-Soar, Kathryn Denyer,

Businesses increasingly look to protect their investment in sponsored workers with “clawback” agreements, seeking to recoup immigration fees from the employee if employment terminates. With sponsorship on the rise post-Brexit, businesses are asking questions about how to create an effective clawback agreement.

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This article explores the key considerations and risks involved in these arrangements.

Employers support employees with the high cost of visa sponsorship

The average cost of sponsoring a Skilled Worker for five years can exceed £10,000. Most of the fees incurred are government fees including a visa application fee, a fee to assign a Certificate of Sponsorship, an Immigration Skills Charge, an Immigration Health Surcharge, a fee for attending an appointment, a priority processing fee and so on.

In most cases, the majority of these costs are borne by the employer. Sponsoring an employee therefore entails a significant up-front investment. As a result, some businesses are hesitant to offer jobs to candidates who require sponsorship, instead preferring to recruit from the settled labour market. Such a policy is supported by the government in their promotional material for employers, which explicitly wants to “encourage employers to first consider domestic recruitment options within the UK”. However, it potentially poses the risk of a spurned candidate bringing an employment tribunal claim for race discrimination claim in an employment tribunal (explored further in our article Employment law and immigration law: two awkward siblings).

As employers are continuing to struggle with labour shortages and skills gap post-Brexit, the sponsorship of overseas talent is prevalent. We are increasingly asked to advise on ways to protect an employer’s investment in a sponsored employee. One method is to require sponsored employees to agree to repay the immigration fees associated with their application if their employment terminates. This is commonly referred to as a “clawback” agreement. These arrangements are increasingly common but are not without some risk. Careful thought and drafting are essential.

Don’t cause flaws in clawback clauses: key considerations

•  Employment contract or side letter? Is the clawback obligation going to be embedded as a clause in the employment contract itself, or is it going to sit in a separate side letter that will be issued to the employee? If the latter, the employee’s counter-signature will be needed to evidence their consent to the agreement. And whichever form it takes, it must be clear that the employer has the authority to make a deduction from the employee’s final salary payment for these costs.

• Is it enforceable? It’s possible that an employee will seek to argue that a repayment obligation is either a penalty or a restraint of trade, rendering the obligation unenforceable and invalid. Whether or not this argument would be successful remains untested in law (as far as we know). What we do know is that repayment obligations in the (slightly different) context of training costs are enforceable, provided that they are proportionate to the loss suffered by the employer. In any event, the obligation may still have some value to the employer as a deterrent.
  • Is it proportionate? The best way to mitigate against an argument that a repayment clause is unenforceable is to carefully tailor the obligation so that it is proportionate. This could include:

    • Incorporating a ‘sunset’ provision, so that the obligation to repay the fees extinguishes after a particular period of time.

    • ‘Tapering’ the obligation, so that the amount of the fees that needs to be repaid incrementally decreases over time.

    • Excluding some elements of the immigration fees. The Immigration Skills Charge, for one, must be excluded (Home Office guidance states that the employer’s sponsor licence may be revoked if the charge is passed on to the sponsored employee). We also think that it is best practice to exclude the Certificate of Sponsorship fee (at £199, it is relatively low compared to the value that the employer will get from the sponsored employee). Further, it may be considered unreasonable to include the professional fees that were incurred in applying for the visa, as this is usually a commercial agreement between the employer and its professional advisers.

    • Excluding certain reasons for termination, such as redundancy or where the employer is in fundamental breach of contract and the employee resigns as a result.

•  Is it discriminatory? Employers should be mindful of the risk of an indirect race discrimination claim being brought in respect of a repayment obligation. This would be on the basis that the repayment requirement is likely to have a worse impact on non-British nationals. Indirect discrimination can, however, potentially be justified if there is a good reason for it. As far as we know, the specific point has not yet been tested in the tribunals, but employers should be prepared to explain why the repayment clause is both necessary and proportionate. It’s also arguable that a lengthy repayment provision indirectly discriminates against women, older or disabled employees, because these groups may be less likely to be able to remain in stable employment and so may have shorter lengths of service. In addition, employers should be wary about imposing repayment obligations on certain sponsored employees but not others, as this raises risks of direct discrimination between different groups.
  If you have questions about this topic, please get in touch with a member of our Employment Team or Immigration Team.

Related Item(s): Sponsoring Workers, Immigration

Author(s)/Speaker(s): Tom McEvoy,

The Home Office has capability to scrutinise whether individuals with limited immigration permission are complying with any immigration conditions that restrict or prohibit employment in the UK. In this article, we look at this issue with a focus on how employment is defined, methods of detection, consequences of breach and how to minimise risk.

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How is employment defined for UK immigration purposes?

An important key to ensuring compliance with employment conditions is to understand that ‘employment’ is very broadly defined under the Immigration Rules as follows:

“Employment” includes paid and unpaid employment, paid and unpaid work placements undertaken as part of a course or period of study, self-employment and engaging in business or any professional activity. Standing for or filling an elected post in local or devolved government is not considered to be employment for the purposes of the immigration rules, and conditions restricting employment do not affect the ability to undertake such activities.

This definition then needs to be imported into the wording of employment restrictions or prohibitions in each immigration route. Attention also must be paid to any intention requirements in the route relating to work activities (e.g. to only work for the employer authorised by the Home Office), because the Home Office has the power to cancel a person’s existing immigration permission where it is clear they do not meet its requirements.

How does the Home Office pick up on a breach of employment conditions?

The Home Office can detect breach of employment conditions in a range of ways and some methods are more common for particular immigration routes. Examples include:

• When a person is examined at the border – this can be a particular risk for visitors but can also affect workers with employment restrictions;

• If the Home Office receives intelligence from an employer or member of the public;

• When the Home Office makes out Companies House directorship searches or HMRC PAYE or self-assessment checks as part of an application for further permission or settlement – these checks may not necessarily prove illegal working but can lead to explanations being requested or to a refusal; and

• When the Home Office checks HR records or speaks with HR or workers as part of a right to work or sponsor licence audit – these audits are currently high priority for the Government and can pick up irregularities relating to any individual at the business’s premises, including visitors and contractors.

What are some of the consequences of breach of employment conditions?

For individuals, impacts may include:

• Cancellation of immigration permission;

• Refusal of an outstanding or future immigration application;

• Re-entry ban to the UK;

• Criminal liability, including being fined and/or sent to jail for up to six months; and

• Having earnings confiscated.

For businesses, impacts may include:

• Business disruption, especially if the individual’s presence is key, such as in the case of a Sole Representative, UK Expansion Worker or senior or specialist worker under the Skilled Worker or Senior or Specialist Worker routes;

• Liability to a civil penalty of up to £20,000 per illegal worker;

• Sponsor licence suspension, downgrade or revocation;

• Cancellation of sponsored workers’ immigration permission in the case of sponsor licence revocation;

• Criminal liability for the business and its managers where the business knew, or had reasonable cause to believe that an employee was working in breach of their immigration conditions (or without any immigration permission).

What actions can be taken to address risk in this area?

A breach of employment conditions can happen unknowingly, so awareness of the scope of activities a person with limited immigration permission may undertake is key. For some examples of situations that may result in breach of employment conditions in the current challenging economic climate, see our earlier article here.

Risks may be minimised by taking actions such as:

• Ensuring that any visitors a business invites to the UK understand what activities are and are not allowed under this route, and that they and the personnel inviting them are advised to limit their activities accordingly;

• Ensuring that Sole Representatives, Sponsored Workers and Students are aware that the Home Office can run directorship and HMRC checks on their activities, and that they should seek advice before taking on additional directorship or employment-related activities, whether paid or unpaid;

• Understanding the scope of supplementary employment and having policies in place for monitoring this both for sponsored workers and unsponsored workers who are carrying out supplementary employment;

• Understanding what work activities and hours Students are allowed to carry out under their immigration permission, including knowing when their term and vacation times are, monitoring how many hours they are working for all employers during term-time and ensuring they do not carry out a full-time permanent position unless authorised to do so; and

• Seeking advice swiftly where a breach of immigration conditions comes to light.

Although prevention is better than cure, the Home Office is able to consider exercising discretion around whether to impose particular sanctions, especially where the breach can be shown to be inadvertent, action has been taken to prevent future breaches and there are substantial reasons why leniency may be appropriate.

We will be covering the topic of illegal working in our upcoming webinar, What’s happening in immigration law, on 3 May 2023. For further information and to sign up, click here. If you require advice on avoiding or dealing with breach of employment conditions, please get in touch with a member of our Immigration Team.

Related Item(s): Immigration

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

At Lewis Silkin, trainees are offered a range of client secondment opportunities. As we mostly work for creative businesses, there is often an opportunity to be seconded to businesses in industries like tech, film, media, and fashion.

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Whilst searching for the firm to pursue your training contract at, you may have come across firms enticing you in with the promise of a glamorous and exciting client secondment, but what does it actually mean, is it worth doing one, and how does it work in practice? Hopefully I can help to answer some of the burning questions you may have when it comes to secondments. If you are on the fence on whether to volunteer for a secondment, or if you just want a bit more information about the client secondment opportunities at Lewis Silkin, then please keep reading.

What is a secondment?

A secondment is a short placement in the legal team of a client, which can last the full duration of your seat or less. You will be working in a legal team within a business, rather than a law firm, which is known as working “in-house”. When you work in-house your client will be the business’ stakeholders.

What secondment opportunities does Lewis Silkin provide?

At Lewis Silkin, trainees are offered a range of client secondment opportunities. As we mostly work for creative businesses, there is often an opportunity to be seconded to businesses in industries like tech, film, media, and fashion. I went on secondment to the employment legal team at a global film production company for my first seat and I absolutely loved the experience; after all, who wouldn’t love spending their workdays on film sets? At the moment, we don’t offer any international opportunities as our offices and clients are predominantly UK based, but we are expanding so watch this space!

What work will I do?

The work you’ll do will depend on the client that you are seconded to, and the area of law. The client secondments that arise at Lewis Silkin will be within our key practice areas , which range from employment and immigration to commercial and intellectual property. The work within a business is dictated by business need, so every day will be different, but in general it may consist of advisory work and routine contractual drafting rather than working on big pieces of litigation.

To give you an example, if you are a secondee trainee in an employment legal team, some tasks might be:

• Preparing first drafts of routine contracts such as NDAs, Settlement Agreements, and Employment Agreements

• Legal research

• Taking notes in meetings with the HR team

• Preparing advice notes

• Co-ordination of international advice and internal projects (e.g. a TUPE transfer)

• Updating and drafting from scratch internal policies (such as the grievance and disciplinary policy, remote working policy)

Do you have to apply?

At Lewis Silkin there’s no formal application process for a secondment. If you are interested in completing a secondment in a certain area of law, make that known at the start of your training contract so that if an opportunity arises, the team will already be aware of your interests.

Are there any downsides to completing a secondment?

Some are of the opinion that going on secondment means that you don’t feel part of the team back at your law firm, and you miss out on valuable “face time”. At Lewis Silkin, unless you have worked as a paralegal at the firm previously, you will not be eligible to go on secondment in your first seat, so that you get a chance to settle in first. The connections that you build on secondment are just as important as internal ones, and you will have plenty of time to meet the wider team over the course of your training contract.

Although a secondment can also be a steep learning curve, this is a positive as it means you are pushed out of your comfort zone and improve as a lawyer and, after all, a training contract is about training. Don’t be afraid to make mistakes and feel free to ask your supervisor and colleagues for help as much as you need.

Should I do a client secondment?

Absolutely! Working in-house is such an invaluable experience as you get to really understand the business of your client and what they are looking for in their legal advice – ultimately it’s a fantastic way to learn how in-house legal teams work, making you more likely to understand how to provide legal advice in the best format. It is also a great development opportunity as often trainees are given more responsibility in a business than they get at a law firm (mainly due to smaller team sizes). I was negotiating contracts on my own within my first month of working in-house – this can be scary, but it is a great chance to improve your skills (and a supervisor will always check your work, don’t worry.

To summarise, client secondments are a great opportunity to improve your commercial awareness, legal skills, and to build connections with our clients. I can’t promise that all secondments at Lewis Silkin will lead to a private tour of a film set, but they will most certainly be an enjoyable experience and could even be a highlight of your training contract.’

Type: Trainee Stories

Related Item(s): Trainee Stories

Author(s)/Speaker(s): Anna Whaley,

On 9 March 2023 the Home Office published its Spring Statement of Changes in Immigration Rules. The statement contains important updates to employment requirements in work routes. It also introduces the new Electronic Travel Authorisation relevant for short trips to the UK.

Text:

This article summarises some of the changes that are most likely to be of interest to employers. The changes in HC 1160 come into effect at various points in time and are indicated next to each topic.

Updates to work routes from 12 April 2023

This includes updates to the Skilled Worker, Global Business Mobility, Scale-up and Seasonal Worker routes. Although changes take effect on 12 April 2023, sponsors should note that if an application for entry clearance or permission to stay is made using a Certificate of Sponsorship issued before 12 April 2023, the application will be decided in accordance with the Immigration Rules in force on 11 April 2023.

The most significant changes include:

• An increase to the general salary thresholds and hourly rates;

• Amendments to Appendix Skilled Occupations; and

• Clarification on how to assess salaries for irregular working patterns.

Increases to general salary thresholds

There will be in increase to the general salary threshold for each route, which are summarised in the table below.

Immigration route	Current general salary threshold	New general salary threshold
Skilled Worker Option A Option B (relevant PhD) Option C to F (PHD in STEM, shortage occupation, new entrant to the labour market and health or education sectors)	£25,600 £23,040 £20,480	£26,200 £23,580 £20,960
Global Business Mobility Senior or Specialist Worker Graduate Trainee UK Expansion Worker	£42,400 £23,100 £42,400	£45,800 £24,220 £45,800
Scale-up	£33,000	£34,600
Seasonal Worker If the applicant is being sponsored under occupation code 5431 or 5433 in the poultry production sector only	£25,600	£26,200

Increases in minimum hourly rate for Skilled Worker and Seasonal Worker routes

The minimum hourly rates will increase as follows:

Immigration route	Current minimum hourly rate	New minimum hourly rate
Skilled Worker	£10.10	£10.75
Seasonal Worker	£10.10	£10.42

Changes to salary going rates for Skilled Worker, Global Business Mobility and Scale-up routes

In addition to changes to the general salary thresholds, there is a change to the going rates listed in Table 1 of Appendix Skilled Occupations. The going rate will now be based on a 37.5 hour working week, rather than a 39-hour working week. This will impact the calculations made by sponsors when they pro-rate salaries according to weekly working hours and working patterns.

The overall reduction to a 37.5 hour working week does not necessarily mean that the salaries aligned to occupation codes in Table 1 will also reduce. There has been an overall increase to the going rates for many occupations, which have been updated in line with the most recent UK salary data. Employers should review the new Appendix Skilled Occupations in detail once it is published in the Immigration Rules.

Changes to salary calculations for those with irregular working hours

Another significant change is that the Skilled Worker, Senior or Specialist Worker, Graduate Trainee, UK Expansion Worker, Scale-up and Seasonal Worker routes now contain a provision to account for irregular working patterns that result in receiving uneven pay each week.

The new Rules will allow time in excess of 48 hours worked in some weeks to count towards the salary thresholds, if the average over a regular cycle (which must be no more than 17 weeks) is 48 hours a week or less. Unpaid rest weeks will count towards the average and will not count as absences from employment that may lead to cancellation of permission. This provides sponsors and sponsored workers with additional flexibility regarding working patterns and will be especially relevant for offshore workers and others who perform extended onsite shifts.

Requirement to comply with National Minimum Wage and Working Time Regulations

Sponsors are already required to comply with generally applicable UK laws, however from 12 April 2023 Home Office caseworkers can refuse an application under most sponsored work and temporary work routes if they have reasonable grounds for believing the job does not comply with the National Minimum Wage Regulations (NMWR) or the Working Time Regulations (WTR).

Employers should note that National Minimum Wage rates are rising from 1 April 2023 and may be above the £10.10 minimum hourly rate for the Skilled Worker route. Employers should ensure they comply with the new National Minimum Wage requirements for all their workers, and that CoS assigned from 1 April 2023 complies with both the prevailing hourly rates set out in the Immigration Rules, as well as NMWR.

Employers should also ensure that where a sponsored worker opts out of the average 48 working hour maximum provided for under the WTR, evidence of this is retained on their HR file.

Absences from employment for jury service and court attendance as a witness

Jury service and attending court as a witness are added to the list of activities that will be ignored for the purposes of:

• Considering whether permission should be cancelled due to a worker being absent from employment on no or reduced pay; and

• Considering whether a 12-month continuous period of employment (which is a requirement for some routes) has been broken.

Inclusion of offshore workers in Skilled Worker route

In what the Home Office describes as a ‘minor amendment’, the Rules have been updated to confirm that the Skilled Worker route applies to those who are working in UK waters, i.e. any waters within the UK and the UK territorial sea. The territorial sea extends beyond the UK landmass for 12 nautical miles.

This change reflects the provisions of the recently commenced section 43 and Schedule 6 of the Nationality and Borders Act 2022. If you have any queries about these provisions, please get in touch with us.

Minimum weekly hours for Seasonal Workers in horticulture

In addition to the minimum hourly rate of pay for Seasonal Workers being increased to £10.42, Seasonal Workers in horticulture must be employed for at least 32 hours per week. This brings them in line with the current minimum hours requirement for poultry workers.

Amendments to the visitor rules from 12 April 2023

Working as seafarer is being included in the list of permitted activities for visitors to the UK. These workers are not affected by the above changes to the Skilled Worker route for offshore workers.

Seafarers will need to demonstrate they are delivering or collecting goods or passengers on a vessel on a genuine international route between a port in the UK and a port outside the UK. They may call at no more than 10 UK ports within a 60-day time period before travelling to a port outside the UK. They may also receive payment from a UK source.

Launch of Electronic Travel Authorisations from 15 November 2023

The Electronic Travel Authorisation (ETA) is a new requirement that will be applied, through a gradual roll-out starting 15 November 2023, to individuals who currently do not need a visa before entering the UK for short trips, plus Jordan.

Scope of the ETA scheme

Non-visa nationals, citizens of countries currently eligible for an electronic visa waiver and Jordanian citizens will be required to obtain an ETA for:

• Visits to the UK for up to six months for tourism, visiting family and friends, business or study;

• Visits to the UK for up to three months under the Creative Worker visa concession; and

• Transiting through the UK.

The ETA scheme will not apply to:

• British and Irish citizens;

• Individuals with the right of abode in the UK;

• Individuals who are exempt from immigration control;

• Holders of an existing visa;

• Holders of existing entry clearance or permission to stay;

• Holders of a frontier worker permit; and

• Non-visa nationals who are legally resident in Ireland and are entering the UK from Ireland, Guernsey, Jersey or the Isle of Man.

Application process

The scheme will operate in a similar way to the USA’s Electronic System for Travel Authorisation (ESTA), whereby nationals of certain countries who do not need a visa to enter the USA must obtain prior permission to visit.

Applications will be made online or via an ‘ETA App’. Applicants must have a valid chipped passport, take a digital photo and enrol their biometrics. There will be a short set of ‘suitability’ questions; applications may be refused on criminality grounds, if the person has an outstanding NHS debt over £500, if they have breached immigration laws by overstaying or breaching a condition of their permission or if their presence in the UK is considered not conducive to the public good. This is not an exhaustive list.

The cost of an ETA is yet to be announced, but application fees are predicted to be in the region of £10 to £20. The processing time is estimated to be three working days, unless further checks are required.

An ETA will have a two-year validity or will expire in line with the passport if the passport expires earlier. It can be used for multiple visits. Employers should note that if an application for an ETA is refused, a visa application is required which could add up to three weeks to a business travel timeline.

If a person who requires an ETA travels to the UK without one, they may be refused permission to enter.

Three-phase rollout

The requirement to obtain an ETA in advance of travel is being rolled out gradually, starting with nationals of Qatar who wish to travel to the UK from 15 November 2023 for the above short-term purposes. From 22 February 2024, it will apply to nationals of Bahrain, Jordan, Kuwait, Oman, Saudi Arabia and United Arab Emirates. It should apply to all non-visa nationals by the end of 2024.

Implications for employers

This is a significant development for employers whose employees visit the UK for business activities, or who invite individuals for permitted paid engagements under the visitor rules. In readiness for the roll-out of the scheme, employers may consider:

• Allocating a budget for ETA application costs;

• Amending their policies and process outlines for supporting business visits and permitted paid engagements to the UK;

• Encouraging intending visitors to apply early for their ETA, to avoid timing issues where an ETA is refused.

New Innovator Founder route and closure of Start-up route from 13 April 2023

The Innovator Founder is a new immigration route that replaces the Innovator route. It implements the government’s strategy for innovation published in July 2021.

The new route is a revamped version of the Innovator route, but with the added advantage of no requirement to have £50,000 minimum funds to invest. There is also a relaxation of the restricted work requirement, which means that new applicants on this route have permission to work in skilled roles (at RQF Level 3, i.e. A-level equivalent) outside of the running of their business.

There will be three new endorsing bodies for the route, and, among other things, they will need to assess whether an applicant is a ‘fit and proper person’. The Home Office will also be able to refuse an application or cancel immigration permission if there is reason to believe an applicant is not a fit and proper person, or other grounds relating to corruption, financial crime or financial misconduct apply.

A partner or child of an Innovator Founder will not be eligible to obtain entry clearance or permission to stay as an Innovator Founder dependant where the main applicant has already settled or become a British citizen. They will need to apply under Appendix FM or in their own right under an alternative route instead.

As the requirement to have funds of at least £50,000 has been removed, it is no longer necessary to have a separate ‘Start-up’ route for entrepreneurs. As a result, the Start-up route will close, other than for applications supported by endorsement issued before 13 April 2023 and submitted by 12 July 2023.

Update and enhancement of the Youth Mobility Scheme from 29 June 2023

If an application is made before 29 June 2023, it will be decided in accordance with the Immigration Rules in force on 28 June 2023.

The quota for each participating country in the Youth Mobility Scheme is included when the Rule changes take effect. Australia will have an additional 5000 places, bringing their quota to 35,000 places. Canada will have an additional 2,000 places, bringing their quota to 8,000 places. The other participating quotas remain the same at between 1,000 and 13,000 places.

Nationals of New Zealand applying under this route will have more flexible requirements. Applicants aged 18 to 35 will be eligible (currently they must be between 18 to 30) and the total period of stay will increase from two to three years. New Zealand applicants will also be eligible to extend any existing permission they have under the route so that they can take advantage of the longer three-year period of stay.

Updates to the Global Talent and Prestigious Prizes routes from 12 April 2023

Changes are made to the endorsement criteria and evidential requirements. This will impact new entry clearance applications and applications for permission to stay.

A notable welcome change is that time spent in the UK as a Representative of an Overseas Business can be combined with time spent in the Global Talent route as part of the three or five-year continuous residence period towards settlement.

There is currently no information on endorsement arrangements for digital technology applications following the anticipated closure of the current endorsing body, Tech Nation, on 31 March 2023.

Qualifying routes narrowed for long residence settlement from 13 April 2023

An individual may qualify for settlement in the UK once they have accrued at least ten years’ continuous lawful residence.

For applications submitted under this route from 13 April 2023, the following will not be eligible to be counted towards the ten-year qualifying period:

• Time spent on immigration bail;

• Time spent as a:

• Visitor;

• Short-term student (studying an English language course for up to 12 months); or

• Seasonal Worker.

The effect of this change is to defer the earliest date some applicants will be eligible to apply for settlement. The practical impact for employers is that some employees may now require sponsorship or another alternative grant of temporary immigration permission in the interim.

Our Immigration Law Academy on 19 and 20 April 2023 will cover recent changes to the Immigration Rules and policy guidance in further detail, alongside taking a deep dive into immigration categories for work, sponsorship and right to work. Click here for further information and to sign up. If you have any specific queries about these changes, please get in touch with a member of our Immigration Team.

Related Item(s): Immigration

Author(s)/Speaker(s): Andrew Osborne, Supinder Singh Sian, Stephen OFlaherty, Naomi Hanrahan-Soar, Kathryn Denyer, Pip Hague,

On 9 March 2023 the Home Office published its Spring Statement of Changes in Immigration Rules. The statement contains important updates to employment requirements in work routes. It also introduces the new Electronic Travel Authorisation relevant for short trips to the UK.

Text:

This article summarises some of the changes that are most likely to be of interest to employers. The changes in HC 1160 come into effect at various points in time and are indicated next to each topic.

Updates to work routes from 12 April 2023

This includes updates to the Skilled Worker, Global Business Mobility, Scale-up and Seasonal Worker routes. Although changes take effect on 12 April 2023, sponsors should note that if an application for entry clearance or permission to stay is made using a Certificate of Sponsorship issued before 12 April 2023, the application will be decided in accordance with the Immigration Rules in force on 11 April 2023.

The most significant changes include:

• An increase to the general salary thresholds and hourly rates;

• Amendments to Appendix Skilled Occupations; and

• Clarification on how to assess salaries for irregular working patterns.

Increases to general salary thresholds

There will be in increase to the general salary threshold for each route, which are summarised in the table below.

Immigration route	Current general salary threshold	New general salary threshold
Skilled Worker Option A Option B (relevant PhD) Option C to F (PHD in STEM, shortage occupation, new entrant to the labour market and health or education sectors)	£25,600 £23,040 £20,480	£26,200 £23,580 £20,960
Global Business Mobility Senior or Specialist Worker Graduate Trainee UK Expansion Worker	£42,400 £23,100 £42,400	£45,800 £24,220 £45,800
Scale-up	£33,000	£34,600
Seasonal Worker If the applicant is being sponsored under occupation code 5431 or 5433 in the poultry production sector only	£25,600	£26,200

Increases in minimum hourly rate for Skilled Worker and Seasonal Worker routes

The minimum hourly rates will increase as follows:

Immigration route	Current minimum hourly rate	New minimum hourly rate
Skilled Worker	£10.10	£10.75
Seasonal Worker	£10.10	£10.42

Changes to salary going rates for Skilled Worker, Global Business Mobility and Scale-up routes

In addition to changes to the general salary thresholds, there is a change to the going rates listed in Table 1 of Appendix Skilled Occupations. The going rate will now be based on a 37.5 hour working week, rather than a 39-hour working week. This will impact the calculations made by sponsors when they pro-rate salaries according to weekly working hours and working patterns.

The overall reduction to a 37.5 hour working week does not necessarily mean that the salaries aligned to occupation codes in Table 1 will also reduce. There has been an overall increase to the going rates for many occupations, which have been updated in line with the most recent UK salary data. Employers should review the new Appendix Skilled Occupations in detail once it is published in the Immigration Rules.

Changes to salary calculations for those with irregular working hours

Another significant change is that the Skilled Worker, Senior or Specialist Worker, Graduate Trainee, UK Expansion Worker, Scale-up and Seasonal Worker routes now contain a provision to account for irregular working patterns that result in receiving uneven pay each week.

The new Rules will allow time in excess of 48 hours worked in some weeks to count towards the salary thresholds, if the average over a regular cycle (which must be no more than 17 weeks) is 48 hours a week or less. Unpaid rest weeks will count towards the average and will not count as absences from employment that may lead to cancellation of permission. This provides sponsors and sponsored workers with additional flexibility regarding working patterns and will be especially relevant for offshore workers and others who perform extended onsite shifts.

Requirement to comply with National Minimum Wage and Working Time Regulations

Sponsors are already required to comply with generally applicable UK laws, however from 12 April 2023 Home Office caseworkers can refuse an application under most sponsored work and temporary work routes if they have reasonable grounds for believing the job does not comply with the National Minimum Wage Regulations (NMWR) or the Working Time Regulations (WTR).

Employers should note that National Minimum Wage rates are rising from 1 April 2023 and may be above the £10.10 minimum hourly rate for the Skilled Worker route. Employers should ensure they comply with the new National Minimum Wage requirements for all their workers, and that CoS assigned from 1 April 2023 complies with both the prevailing hourly rates set out in the Immigration Rules, as well as NMWR.

Employers should also ensure that where a sponsored worker opts out of the average 48 working hour maximum provided for under the WTR, evidence of this is retained on their HR file.

Absences from employment for jury service and court attendance as a witness

Jury service and attending court as a witness are added to the list of activities that will be ignored for the purposes of:

• Considering whether permission should be cancelled due to a worker being absent from employment on no or reduced pay; and

• Considering whether a 12-month continuous period of employment (which is a requirement for some routes) has been broken.

Inclusion of offshore workers in Skilled Worker route

In what the Home Office describes as a ‘minor amendment’, the Rules have been updated to confirm that the Skilled Worker route applies to those who are working in UK waters, i.e. any waters within the UK and the UK territorial sea. The territorial sea extends beyond the UK landmass for 12 nautical miles.

This change reflects the provisions of the recently commenced section 43 and Schedule 6 of the Nationality and Borders Act 2022. If you have any queries about these provisions, please get in touch with us.

Minimum weekly hours for Seasonal Workers in horticulture

In addition to the minimum hourly rate of pay for Seasonal Workers being increased to £10.42, Seasonal Workers in horticulture must be employed for at least 32 hours per week. This brings them in line with the current minimum hours requirement for poultry workers.

Amendments to the visitor rules from 12 April 2023

Working as seafarer is being included in the list of permitted activities for visitors to the UK. These workers are not affected by the above changes to the Skilled Worker route for offshore workers.

Seafarers will need to demonstrate they are delivering or collecting goods or passengers on a vessel on a genuine international route between a port in the UK and a port outside the UK. They may call at no more than 10 UK ports within a 60-day time period before travelling to a port outside the UK. They may also receive payment from a UK source.

Launch of Electronic Travel Authorisations from 15 November 2023

The Electronic Travel Authorisation (ETA) is a new requirement that will be applied, through a gradual roll-out starting 15 November 2023, to individuals who currently do not need a visa before entering the UK for short trips, plus Jordan.

Scope of the ETA scheme

Non-visa nationals, citizens of countries currently eligible for an electronic visa waiver and Jordanian citizens will be required to obtain an ETA for:

• Visits to the UK for up to six months for tourism, visiting family and friends, business or study;

• Visits to the UK for up to three months under the Creative Worker visa concession; and

• Transiting through the UK.

The ETA scheme will not apply to:

• British and Irish citizens;

• Individuals with the right of abode in the UK;

• Individuals who are exempt from immigration control;

• Holders of an existing visa;

• Holders of existing entry clearance or permission to stay;

• Holders of a frontier worker permit; and

• Non-visa nationals who are legally resident in Ireland and are entering the UK from Ireland, Guernsey, Jersey or the Isle of Man.

Application process

The scheme will operate in a similar way to the USA’s Electronic System for Travel Authorisation (ESTA), whereby nationals of certain countries who do not need a visa to enter the USA must obtain prior permission to visit.

Applications will be made online or via an ‘ETA App’. Applicants must have a valid chipped passport, take a digital photo and enrol their biometrics. There will be a short set of ‘suitability’ questions; applications may be refused on criminality grounds, if the person has an outstanding NHS debt over £500, if they have breached immigration laws by overstaying or breaching a condition of their permission or if their presence in the UK is considered not conducive to the public good. This is not an exhaustive list.

The cost of an ETA is yet to be announced, but application fees are predicted to be in the region of £10 to £20. The processing time is estimated to be three working days, unless further checks are required.

An ETA will have a two-year validity or will expire in line with the passport if the passport expires earlier. It can be used for multiple visits. Employers should note that if an application for an ETA is refused, a visa application is required which could add up to three weeks to a business travel timeline.

If a person who requires an ETA travels to the UK without one, they may be refused permission to enter.

Three-phase rollout

The requirement to obtain an ETA in advance of travel is being rolled out gradually, starting with nationals of Qatar who wish to travel to the UK from 15 November 2023 for the above short-term purposes. From 22 February 2024, it will apply to nationals of Bahrain, Jordan, Kuwait, Oman, Saudi Arabia and United Arab Emirates. It should apply to all non-visa nationals by the end of 2024.

Implications for employers

This is a significant development for employers whose employees visit the UK for business activities, or who invite individuals for permitted paid engagements under the visitor rules. In readiness for the roll-out of the scheme, employers may consider:

• Allocating a budget for ETA application costs;

• Amending their policies and process outlines for supporting business visits and permitted paid engagements to the UK;

• Encouraging intending visitors to apply early for their ETA, to avoid timing issues where an ETA is refused.

New Innovator Founder route and closure of Start-up route from 13 April 2023

The Innovator Founder is a new immigration route that replaces the Innovator route. It implements the government’s strategy for innovation published in July 2021.

The new route is a revamped version of the Innovator route, but with the added advantage of no requirement to have £50,000 minimum funds to invest. There is also a relaxation of the restricted work requirement, which means that new applicants on this route have permission to work in skilled roles (at RQF Level 3, i.e. A-level equivalent) outside of the running of their business.

There will be three new endorsing bodies for the route, and, among other things, they will need to assess whether an applicant is a ‘fit and proper person’. The Home Office will also be able to refuse an application or cancel immigration permission if there is reason to believe an applicant is not a fit and proper person, or other grounds relating to corruption, financial crime or financial misconduct apply.

A partner or child of an Innovator Founder will not be eligible to obtain entry clearance or permission to stay as an Innovator Founder dependant where the main applicant has already settled or become a British citizen. They will need to apply under Appendix FM or in their own right under an alternative route instead.

As the requirement to have funds of at least £50,000 has been removed, it is no longer necessary to have a separate ‘Start-up’ route for entrepreneurs. As a result, the Start-up route will close, other than for applications supported by endorsement issued before 13 April 2023 and submitted by 12 July 2023.

Update and enhancement of the Youth Mobility Scheme from 29 June 2023

If an application is made before 29 June 2023, it will be decided in accordance with the Immigration Rules in force on 28 June 2023.

The quota for each participating country in the Youth Mobility Scheme is included when the Rule changes take effect. Australia will have an additional 5000 places, bringing their quota to 35,000 places. Canada will have an additional 2,000 places, bringing their quota to 8,000 places. The other participating quotas remain the same at between 1,000 and 13,000 places.

Nationals of New Zealand applying under this route will have more flexible requirements. Applicants aged 18 to 35 will be eligible (currently they must be between 18 to 30) and the total period of stay will increase from two to three years. New Zealand applicants will also be eligible to extend any existing permission they have under the route so that they can take advantage of the longer three-year period of stay.

Updates to the Global Talent and Prestigious Prizes routes from 12 April 2023

Changes are made to the endorsement criteria and evidential requirements. This will impact new entry clearance applications and applications for permission to stay.

A notable welcome change is that time spent in the UK as a Representative of an Overseas Business can be combined with time spent in the Global Talent route as part of the three or five-year continuous residence period towards settlement.

There is currently no information on endorsement arrangements for digital technology applications following the anticipated closure of the current endorsing body, Tech Nation, on 31 March 2023.

Qualifying routes narrowed for long residence settlement from 13 April 2023

An individual may qualify for settlement in the UK once they have accrued at least ten years’ continuous lawful residence.

For applications submitted under this route from 13 April 2023, the following will not be eligible to be counted towards the ten-year qualifying period:

• Time spent on immigration bail;

• Time spent as a:

• Visitor;

• Short-term student (studying an English language course for up to 12 months); or

• Seasonal Worker.

The effect of this change is to defer the earliest date some applicants will be eligible to apply for settlement. The practical impact for employers is that some employees may now require sponsorship or another alternative grant of temporary immigration permission in the interim.

Our Immigration Law Academy on 19 and 20 April 2023 will cover recent changes to the Immigration Rules and policy guidance in further detail, alongside taking a deep dive into immigration categories for work, sponsorship and right to work. Click here for further information and to sign up. If you have any specific queries about these changes, please get in touch with a member of our Immigration Team.

Related Item(s): Immigration

Author(s)/Speaker(s): Andrew Osborne, Supinder Singh Sian, Stephen OFlaherty, Naomi Hanrahan-Soar, Kathryn Denyer, Pip Hague,

On 28 February 2023 the Home Office published an updated version of its right to work guidance for employers. This includes important information on the limits of using Identity Document Validation Technology (IDVT) for compliant right to work checks, as well as other significant information.

Text:

The Employer’s guide to right to work checks (the guidance) is the main guidance document for employers to refer to when seeking to carry out right to work checks that will provide a statutory excuse against liability for an illegal working civil penalty and general compliance with the UK’s illegal working regime.

The updates cover a range of topics as set out below.

Important clarification on using IDVT for right to work checks

Since 6 April 2022, the Home Office introduced the possibility of an employer carrying out a compliant digital right to work check for British and Irish citizens with a valid British or Irish passport (or Irish passport card). This process includes the use of Identity Validation Technology (IDVT) provided by an Identity Service Provider (IDSP). IDVT provides digital identity verification by obtaining evidence of the person’s identity (e.g. a passport) and then checking the validity of the evidence and that it belongs to the person claiming it (e.g. through checking the biometric information from the passport against a selfie and liveness check of the person claiming to be the passport holder). See our earlier article on this here.

The updated guidance clarifies that although IDVT can be used as an additional optional measure to enhance pre-employment checking processes and minimise the risk of fraud, it does not form part of an employer’s statutory excuse against liability for an illegal working civil penalty in the case of a manual or online check. IDVT can only be relied on as part of the statutory excuse for a digital check.

The significant practical issue for employers is that some IDSPs and pre-employment screening providers currently use processes that involve the provider (rather than the employer) completing elements of manual and/or online right to work checks, and which may lead to a statutory excuse not being available. This may be the case if the provider accesses the Home Office’s online system directly, or if the relevant original document(s) for a manual check are not copied by an employee of the employer.

Although liability for a civil penalty only arises if an individual does not in fact have the right to work in the UK, employers who are also sponsors under the points-based system are required to comply with the right to work guidance as part of their sponsor duties. Carrying out checks in a way that does not attract a statutory excuse may lead to sponsor compliance action.

We would suggest employers consider:

• Reviewing the processes of any provider used, alongside their own internal processes, to verify whether they are capable of providing a statutory excuse;

• Adjusting processes where needed to obtain a statutory excuse (this will include ensuring that an employee of the employer carries out all elements of manual and online checks, rather than these being delegated to a third-party provider); and

• Ensuring that the visual check (imposter check) element is carried out by an employee of the employer and is adequately documented.

Please contact us if you require assistance with carrying out a review.

IDSPs using Reusable Identities

Some IDSPs have the capability to create a reusable digital identity or attribute service. What this means in practice for digital right to work checks is that the holder of a British or Irish passport (including Irish passport card) may be able to complete the document and biometric checking process once and reuse the resulting IDVT output each time they are due to start a new job, until the passport expires.

The guidance now sets out the technical requirements for reusable identities to be accepted for digital check purposes.

End of COVID-19 adjusted right to work checks

The guidance includes a reminder that COVID-19 adjusted right to work checks ended on 30 September 2022. Although employers do not have to carry out a retrospective check for employees whose right to work was checked between 30 March 2020 and 30 September 2022, standard prescribed checks must be carried out on or after 1 October 2022.

Expansion of online right to work check system capability for eVisa holders with statutory immigration permission

An eVisa holder who has made an in-country eVisa application for permission to stay in the UK may now issue a share code for an employer to verify their right to work using the online right to work check system in the following circumstances:

• They are an eVisa holder and are applying for a further eVisa for permission to stay (i.e. they have applied using the UK Immigration: ID Check app);

• They do not have permission under the EU Settlement Scheme or as a frontier worker;

• Their application has been made after 26 January 2023 and before the expiry of their existing immigration permission; and

• Their application, or any related administrative review or appeal is pending.

The employer will obtain a statutory excuse for six months once the online check has been completed in line with the guidance. They no longer need to contact the employer checking service. The employer must do a repeat check before the expiry of the six-month timeframe.

The Home Office has produced a factsheet with further information on this change.

This change will only benefit a limited number of eligible individuals initially, but will become more extensively used as eVisas are rolled out more widely between now and 2025.

Additional acceptable document for manual right to work checks

A Re-Admission to the UK (RUK) endorsement in a current passport is now footnoted (in List A) as an acceptable document for manual right to work checks. An individual who presents this endorsement has an ongoing right to work and is not required to complete a follow-up right to work check.

Expanded information on sponsored workers and students

The updated guidance now includes additional text at Annex B.

Skilled Workers

The guidance now refers to Skilled Workers’ ability to undertake limited supplementary employment with a different employer without the need to obtain additional sponsorship or immigration permission.

For an employer providing supplementary employment, the right to work check must include verification that the proposed work falls within the definition of supplementary employment and that the individual is able to carry it out. The guidance also explains that overtime with the individual’s sponsor does not count towards supplementary employment, and there is no maximum number of overtime hours that may be worked per week. The sponsor must however ensure the Skilled Worker is paid overtime at least in line with the salary stated on their Certificate of Sponsorship.

Students

Clarification is added to state that students may fill a permanent full-time vacancy if they have applied to switch Graduate route following successful completion of their studies.

An observation is included that notes that full-time work outside of academic term times is allowed from the day after the academic term ends. Students should confirm with their sponsor what the exact term end date is and verify this with the employer as part of the right to work check process before considering working full-time hours during term breaks.

The guidance also now states that the employer must determine the sufficiency of academic term and vacation information provided by the sponsoring education provider, e.g. by clarifying any discrepancies between information published on the education provider’s website and information contained in a letter or email provided by the education provider directly to the student.

Information on phasing out biometric residence permits

An employer must carry out an online right to work check where a person holds a biometric residence permit (BRP). They should schedule a follow-up check if the online service notes the person’s immigration permission has an expiry date.

Additional text has been inserted into the guidance noting that a biometric residence permit (BRP) may expire on 31 December 2024, despite the individual’s immigration permission expiring after that date, and that the employer should use the expiry date from the online system in that circumstance.

The Government’s aim is to phase out biometric residence permits (BRPs) before the end of 2024. GOV.UK will be updated in early 2024 to explain how BRP holders can evidence their rights beyond the expiry of their BRP.

The results of our recent IDSP survey confirm that employers’ highest priority for engaging an IDSP for right to work checks is obtaining an effective statutory excuse. If you would like us to provide you with further information on this, please register your interest here.

If you have questions about these updates or carrying out compliant right to work checks more generally, please get in touch with a member of our Immigration Team.

Related Item(s): Immigration

Author(s)/Speaker(s): Supinder Singh Sian, Naomi Hanrahan-Soar, Tom McEvoy, Kathryn Denyer,