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.

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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,

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 to the 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 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,

The Immigration Rules and guidance for the EU Settlement Scheme (EUSS) will need to be amended in line with a significant recent High Court judgment. Among other things, employers should expect revised guidance on right to work in the UK for individuals with pre-settled status who fail to make a further application under the EUSS.

Text:

Campaign group, the3million has confirmed the Home Office is not intending to challenge recent findings of the High Court that certain elements of the EU Settlement Scheme (EUSS) are not in line with citizens’ rights under the UK-EU Withdrawal Agreement (the WA).

The EUSS is the means chosen by the UK to discharge its obligations under the WA to protect the residence rights of EEA and Swiss citizens living in the UK by 31 December 2020, and their family members. The legality of the Scheme was questioned because those with pre-settled status must make a further application under the Scheme before the expiry of their five-year permission, otherwise they lose their right to live, work, rent and access free healthcare in the UK.

In a successful case brought by the Independent Monitoring Authority for the Citizens’ Rights Agreement, the High Court held that:

• A person with pre-settled status under the EUSS does not lose their residence rights under the WA if they fail to make a second application before the five-year expiry date of that permission; and

• A person with pre-settled status who acquires a right of permanent residence under the WA after five years of lawful residence in the UK does not lose this if they fail to apply for and obtain settled status under the EUSS.

To avoid practical disruption to EUSS participants, amendments to the Immigration Rules and Home Office guidance will need to be in place before August 2023, which is when the earliest grants of pre-settled status are due to expire.

Along with other guidance, it is anticipated that updates to the Home Office’s right to work check guidance for employers will need to be made to cover the situation where a person’s pre-settled status has expired.

Until the Rules and guidance are updated, individuals who become eligible for settled status after five years’ lawful residence in the UK are encouraged to apply for it as this is the most straightforward way of evidencing their rights.

If you have questions about this development, please get in touch with a member of our Immigration Team.

Related Item(s): Immigration

Author(s)/Speaker(s): Andrew Osborne, Clara Le Chevallier, Pip Hague,

Applicants applying to come to the UK to join British or ‘settled’ family members can now use the priority service to reduce the processing time for their applications. This is a huge relief for those seeking family reunion in the UK.

Text:

The government website has not yet been updated at the time of writing, but its overseas third party visa application centre providers, VFS Global and TLS Contact, both made announcements on their respective websites on 20 February 2023.

Who can now use the priority service?

Priority service has been reintroduced for new visa applications made outside the UK from 20 February 2023. The processing standard is 30 working days from the date of biometric enrolment.

What if I have an existing family visa application pending?

The Home Office previously suspended priority services while they dedicated staff and resources to process applications made under the Ukraine schemes. A range of visa routes were impacted by this. For family visa applications made outside the UK, the standard processing time increased from 12 weeks to 24 weeks.

In January 2023, the Home Office started to contact those with pending visa applications in date order, with an offer to pay an additional fee to upgrade to the priority service. They are continuing with this effort and applicants can expect to be contacted in the weeks to come. To acknowledge that applications may have been pending for a substantial amount of time already, the priority processing service for those with applications pending before 20 February 2023 is reduced further to 15 working days.

While the Home Office aims to deliver a decision within the timeframe, applicants will not receive a refund if it is not met.

What is the cost for using the priority service?

The additional fee for the priority service is £573 per applicant. If a family of four is applying together, the additional fee is £2,292 on top of the usual application fee and Immigration Health Surcharge. It’s not to be considered lightly, especially when processing times are not guaranteed.

And what if you choose not to use the priority service?

If the priority service is not purchased, visa applications should be processed within the standard 24-week timeframe. The Home Office is working to reduce this standard back towards the previous 12-week timeframe, and intending applicants should check Visa decision waiting times: applications outside the UK for updates.

If you require assistance or have an immigration query, please get in touch with a member of our Immigration Team.

Related Item(s): Immigration, Supporting Individuals with Immigration & Nationality

Author(s)/Speaker(s): Stephen OFlaherty, Parvin Iman, Pip Hague,