Immigration Compliance Audit for HR and businesses: 3 ways an audit can help your business

“Immigration Compliance Audit for HR and businesses: 3 ways an audit can help your business” is locked Immigration Compliance Audit for HR and businesses: 3 ways an audit can help your business

For employers and HR professionals sponsoring Tier 2 highly skilled workers from overseas, compliance with immigration laws is crucial.

Immigration compliance does not stop with the initial identity checks made when a candidate starts their employment with a company. Rather, it is a continuing duty. In fact, to test whether employers or sponsors are complying with their continuing duty to prevent illegal working in the UK, UK Visas and Immigration (UKVI) may make announced and unannounced visits to the sponsor’s premises.

Most sponsors and HR professionals are conscientious and take their obligations very seriously as evidenced by the number of UKVI audits that take place without any significant issues.

Get things wrong, and sponsors can face a myriad of penalties including heavy fines of up to £20,000 per unlawful worker, damage to their reputation, the inability to employ their highly skilled overseas staff or hire new staff from overseas, possible closure of their premises for 48 hours and even worse, imprisonment.

What is an immigration compliance audit?

UKVI’s officers will visit a sponsor’s site or sites to confirm the following:

  • The sponsor can offer employment to overseas workers;
  • The information provided by the sponsor is accurate and up-to-date;
  • The company is genuine and lawfully operating in the UK;
  • The sponsor is able to comply with immigration laws and their sponsorship duties.

UKVI may do this by:

  • Reviewing the information held by the sponsor and contrasting this with the information provided in the online application for a sponsor licence;
  • Speaking with the overseas employees, their managers and recruitment managers;
  • Speaking with members responsible for overall day-to-day UKVI online reporting duties;
  • Reviewing the personnel files of overseas workers and sometimes spot-checking the files of resident workers to ensure that those workers have an entitlement to work in to the UK in the role recorded; and
  • Making an overall assessment of the sponsor’s HR systems, data held and record-keeping to meet their ongoing legal obligations.

It should be noted that sponsors are required to cooperate with UKVI during immigration audits.

During an immigration compliance audit with Thomas Chase Immigration, sponsors or those looking to become sponsors can expect the following:

  • Interviews to be conducted with key personnel identified in the online sponsor licence application;
  • A review of the sponsor’s processes and procedures against UKVI’s requirements;
  • A detailed review of sample files held for overseas workers to confirm best practices are being met;
  • Feedback followed by a written report of findings with recommendations to help the sponsor develop good or better systems.

Where necessary, the sample review of files may need to be widened.

3 Ways that an immigration compliance audit can help

So let’s put this into context by highlighting 3 key ways in which an immigration compliance audit with an immigration provider can help businesses.

  • Providing reassurance prior to an announced UKVI visit

An immigration compliance audit can a for an assist with the preparation of an announced UKVI audit by providing reassurance to sponsors and HR that their systems are appropriate and effective.

It is not uncommon for companies to request an audit to flesh out any internal issues and assess any training gaps.

When conducting an audit at one company, it became very clear that the imminent departure of one the senior members of the HR department would leave a huge gap in knowledge. However, to avert this, training sessions on areas such as right to work checks and the Resident Labour Market Test were arranged.

Training, coupled with ongoing support and advice helped the HR department continue to meet its ongoing obligations and demonstrates a clear example of how an audit can pinpoint things that have not yet surfaced.

Also, in few circumstances, I’ve found that sponsors have utilised the audit to review their working relationship with an immigration provider or get a feel for them before contracting their services again in future.

Applying for a sponsor licence

As stated above, UKVI may visit the sponsor at their site as part of the application consideration process for a sponsor licence. To ensure success, it is important to understand who will manage sponsorship of overseas workers within the company to enhance the success of an application.

An audit can reveal if the right roles, such as that of an authorising officer, have been assigned to the most suitable personnel. It can also highlight whether the company has effective HR systems for monitoring their future employees’ immigration status.

Not only that, but following an audit by an immigration provider and proving any recommendations are followed, the company should feel relatively confident ahead of any UKVI audit or queries.

Ensuring consistency across various UK branches

Managing various company branches can be difficult enough regardless if the company has grown organically or merged or acquired other sites.

An immigration compliance audit can identify any gaps in processes and assess whether key changes have been reported in the proper manner.

In one instance, I worked with a university that had joined forces with two other education establishments to form one entity. As you can imagine, this lead to significant restructuring and downsizing of the HR department, with one site taking most of the responsibility for the other sites due on their immigration experience.

This was seen as a good financial and strategic move by the university, but left the HR department at the main site overwhelmed by their additional personnel and immigration obligations.

An immigration compliance audit was secured and revealed that the main site’s processes and procedures were effective, probably because of the ongoing support and systems that we had developed. The other sites had decent systems but gaps were identified for various reasons as well as an incompatibility with the HR systems.  It was reasonable straightforward to suggest a plan of action in the debriefing to address the issues identified; develop consistent systems for monitoring future employees’ immigration status across the 3 sites and schedule dates to meet and track progress.

And…

There is another reason. Having proper HR systems and procedures in place, can provide protection by way of a statutory defence, should a sponsor unwittingly find that an unlawful worker has been hired.

Conclusion

Hopefully, the above points have shown the benefits of securing an immigration compliance audit for sponsors or businesses looking to become sponsors of overseas workers.

Immigration audits can be carried out by UKVI officers at any time in the sponsoring process, be in at the application stage or after a sponsor licence has been in place for a long time. By getting an audit, a sponsor can gain clarity of the extent to which their HR processes and systems is helping them meet their continuing obligation of preventing illegal working or identity areas to address. Be it, applying for a sponsor licence, checking compliance across various sites, seeking help before an announced visit or just seeking assurance, an immigration compliance audit has many benefits. By securing an immigration compliance audit, and following the recommendations, sponsors can focus on what they do best, providing their customers with great products and services.

Avoid getting caught out by Canada’s strict new travel requirements

Canada strict travel requirements

If you are planning on travelling to Canada on business, you need to avoid getting caught out by Canada’s new mandatory requirements.

Visa-exempt nationals will require an Electronic Travel Authorisation (eTA) to travel to or transit though Canada. That includes British nationals flying to Canada on business. It also includes, business travellers to the US who visit Canada, by air, as part of their trip. An eTA is not required if entering Canada by sea or road.

An eTA allows the Canada authorities to screen travellers before they arrive at the Canadian border. For those familiar with the United States’ Visa Waiver Programme, ESTA, the eTA largely mirrors it. Similar to ESTA, applicants complete an online form with their personal details, pay a nominal fee (currently $7 CAD) and wait a few minutes for a decision. Click here to apply for an eTA 

Unlike ESTA, an eTA is valid for 5 years rather than 2 years. Normally, travellers are allowed to stay in Canada for up to six months, though the Canadian authorities at the border will authorize the period stay in Canada and relay this by way of the stamp in the passport.

Leniency Period

At present, a leniency period exists, aimed at facilitating travel of visa-exempt nationals whilst the authorities addressed some of the technical issues experienced by travellers in the past. Canadian border officials may, as a result, allow you to enter Canada without an eTA, subject to meeting other immigration requirements. That means, you can board your flight without an eTA and enter Canada as long as you have appropriate documents such as a valid passport.

Where an application for an eTA has been submitted, but no decision reached or communicated by the Canadian authorities, it is still possible to travel to and enter Canada during the leniency period.

However, if you have already applied for an eTA and been refused, you will not be able to enter Canada merely because the leniency period is in place.

Should you decide to travel to Canada with a refused eTA you may experience delays or be prevented from entering the country. It’s worth highlighting that refusals of entry into a country are required to be reported on future applications for an eTA, ESTA or visa.

Leniency Period come to an end on 29 September 2016

Crucially, the leniency period ends on 29 September 2016. From 29 September, British travellers and other visa-exempt nationals must be in possession of an eTA in order to enter Canada.

The Canadian authorities may experience some additional teething problems and disruption as visa-exempt nationals apply for their compulsory eTAs from this date, and I’ll certainly be watching and reporting on how things develop. For instance, during the early implementation of eTA it was not unusual to come across reports of decisions taking days, rather than minutes to be reached or of individuals with no adverse immigration history having their initial eTA refused.

It’s sensible, therefore, to apply for an eTA well in advance of your planned travel so as to allow time to address any issues or to submit any additional requested documentation. Without an eTA, you cannot even board the airplane to travel to Canada.

Should the eTA be refused, you are encouraged to address the reasons for the refusal or correct any mistakes make by way of a new application for an eTA.

Where ‘grounds for inadmissibility’ exist, such as prior criminal convictions, a serious medical condition, past immigration refusals, or other potential security concerns, it is advisable to apply for a Temporary Resident Permit and seek advice in order to enter Canada.

UK Residence Card Applications and Processing Times

UK Residence Card processing times

With UK Visas and Immigration (UKVI) finding themselves inundated with applications for a UK residence card and certificate from EEA nationals and EEA family permit holders, it could be easy to assume that the application has fallen into a bottomless pit, only to be seen at some point in the distant future.

After all, we have all heard of the ongoing immigration cases sitting with UKVI for years and years.

However, UK residence card applications, and applications to certify permanent residence status,  are different. This is because UKVI’s service standards, as governed by EU regulations, dictate that UKVI must issue the actual UK residence card within 6 months.

The 6 months’ time frame begins from the date that UKVI receives the application, and the required supporting documents that prove that a right of residence exists.

This means that it is crucial for the applicant to submit the correct information and documentation to UKVI as part of the application.

In some instances, the applicant may legitimately require the application to be fast tracked. If so, the UKVI guidance, as of 30 August 2016, states that a request to expedite the UK residence card application should be made via email to:

The following information must be provided with the request to expedite the matter:

  • Full name
  • Date of birth
  • Date of application
  • Royal Mail Recorded Delivery number, if applicable
  • Method of payment used when making the application (card, cheque etc.)
  • Case ID or Home Office (HO) reference, if known
  • Date of planned removal, if applicable

UKVI will review the request and decide whether to fast track the matter.

Extenuating or exceptional circumstances which may warrant an application to expedite the application for residence, and even permanent residence, can include:

  • A family emergency such as bereavement or serious illness
  • The need to travel for essential medical treatment overseas

In all cases, documentary evidence of the exceptional, compelling circumstances must be provided together with the information outlined above.

The request should be sent to UKVI via email. From experience, it is often helpful to write to the caseworker directly – the details of which can be found in any previous correspondence from UKVI.

Where there is no correspondence, it may help to write to UKVI at:

UK Visas and Immigration
Permanent Migration
PO Box 306
Liverpool
L2 0QN

It is worth adding that UKVI do not consider family celebrations such as weddings and holidays to be exceptional or compelling ‘family emergencies’ to merit expediting an application.

Further, UKVI does not consider day-to-day difficulties as compelling enough to warrant the application being fast tracked. This includes any reasonable difficulties that non-European family members may experience.

That said, it is still worth making the request to UKVI, explaining the circumstances (difficulties in securing a particular job) and documenting any difficulties experienced as a result of the delay.

Hopefully, there will be little need to take such action.

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Written by Carla Thomas – Managing Director at Thomas Chase immigration.

Thomas Chase Immigration offer immigration assistance to individuals, families and organisations.

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Thomas Chase Q&A – Tier 1 (Investor) visa

UK Immigration

Two very different potential clients asked me if now was a good time to apply for a Tier 1 (investor) visa.

Despite what you may think, investors can be risk averse. It therefore stands to reason that before investing £2,000,000 or more in the UK, potential investors from outside of the European Economic Area (EEA)  and Switzerland will wish to know if they (and their families) will be welcomed and if they can expect further obstacles to the application process.

Such questions were raised in the post-Brexit climate. Given that immigration control seemed to form a large part of the Brexit debate and possibly its outcome, it is expected that overseas nationals should question whether now is the time to relocate to the UK.

To assess this, we need to look to the UK economy. Recent figures from the Purchasing Managers’ Index (PMI) showed a seven-year low for the economy as it contracted at its steepest pace since the banking crash of 2008/ 2009. The Bank of England has limited tools left for stimulating the economy having reduced interest rates to an all-time low of 0.5%. It will soon fall to the UK Treasury to come up with some interesting and maverick ways to boost the economy. Making the UK further attractive to overseas investors is one such route.

A financial adviser can advise on the benefits of individual investment opportunities. But from an immigration perspective, there seems to me to be no better time to apply for a Tier 1 (Investor) visa and invest £2,000,000 or more in UK government bonds, share capital or loan capital in active and trading UK registered companies.

And besides, the UK still has so much to offer.

Over to you as I would be interested to hear what you think.

Permanent Residence to British Citizenship: Is it Worth the Hassle?

You have applied to the Home Office for your Permanent Residence card. Post Brexit, is it worth making an application to become a British Citizen?

That depends.

The new Prime Minister, Theresa May, has stated that Brexit will mean Brexit. There will likely be changes for EU nationals seeking to relocate to the UK and work in future beyond Brexit, subject to any reciprocal agreements and negotiations on freedom of movement.

However, for those EU nationals that already have Permanent Residence (PR) in the UK and have applied to certify this status by the Home Office, very little is likely to change. Except that they will have rights under EU law that will no longer strictly apply to the UK post Brexit.

Applying to become a British citizen can be beneficial for those EU nationals with PR that have made the UK their long term home and intend to continue doing so.

If life in the UK is important to you, you couldn’t imagine life elsewhere and you want the added security of knowing that your status will be protected, the extra step can help. And the good thing is, many countries within the EU allow nationals to hold dual nationality.

But there is a proviso and that is around timing. If you are an EU national with non-EEA family overseas, it may be considerably easier to have them join you under the current EU regulations than under UK immigration rules, This is because UK immigration laws place strict financial and other requirements on non-EEA family members joining British family members.

Written by Carla Thomas – Managing Director at Thomas Chase immigration. Thomas Chase Immigration offer immigration solutions to businesses, individuals and families by looking at the bigger picture.

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Successfully applied to become a British Citizen? Here’s what you must do next!

EU citizens Brexit

Congratulations! Your application to become a British Citizen has been successful and you have the Home Office letter to prove it.

You have contacted the local council to arrange your attendance at the citizenship ceremony and invited your nearest and dearest to witness you becoming a British national.

At the ceremony, you will receive your certificate of British citizenship and welcome pack.

And then onto the next step – applying for your British passport. It’s exciting isn’t it?!

Yes. Only there are a few things that you need to be aware of.

After you attend the citizenship ceremony and receive your certificate of British citizenship, your Biometric Residence Permit (BRP) is no longer appropriate for your circumstances. That’s because you have formally become British and your BRP does not reflect this.

To address this, the Home Office requires that you return the BRP to them by post within 5 days of attending the ceremony or receiving the certificate of British citizenship.

Did I say ‘require’? It would be better to say ‘insist’ as failure to return your BRP to the Home Office after attending a citizenship ceremony can result in a fine of up to £1,000.

The BRP must be returned to (correct as of today’s date):

POL Returns 
PO Box 195 
Bristol 
BS20 1BT.

The BRP shouldn’t merely be placed in an envelope and posted but should be cut into several pieces and placed in a windowless envelope with a note. That note should contain brief wording such as:

‘I am returning my permit because I have become a British citizen’.

Apart from ensuring that you return your BRP within 5 days of attending the citizenship ceremony or receiving your certificate of British citizenship, it all seems straightforward, right?

Wrong! What happens if you have travel booked or plan to travel but cannot afford to wait 6 weeks to receive your new British passport?

Can you attend the ceremony, receive your certificate of British citizenship, travel with your original overseas passport and re-enter the UK with your BRP? After all, the BRP will show that you are entitled to reside in the UK and hasn’t expired.

The firm answer is no.

Once you have attended the citizenship ceremony or received your certificate of British citizenship you cannot hold onto the BRP and travel with it once you. You will instead need to be in possession of a British passport or Right of Abode Certificate to enter the UK.

If you do have travel booked, in such circumstances, it may be best to delay booking and attending the citizenship ceremony.

Normally, you will have 3 months from receipt of the Home Office letter of your application outcome to book and attend the ceremony. It your travel is booked to take place within that time, it may be best to contact your local council and explain the situation to them.

Council officials are extremely helpful and may possibly arrange for you to attend the ceremony at the latest available date. This may give you sufficient time to complete your travels and return to the UK using your BRP before attending the ceremony. This option will not be available if your certificate of British citizenship has been sent to you instead.

The main thing is that having gone through the process of qualifying for British citizenship, applying and being successful, it wold be a shame to become subject to a fine because you did not return your BRP or at worst, have no way of proving your immigration status when returning to the UK after your travels.

Hopefully, following this short guide will help you focus on what’s important, celebrating the outcome of your application to become a British citizen!

Brexit: What next for EU nationals?

Thomas Chase Immigration - EU nationals

Following Brexit, it can feel as if the road ahead has been closed to EU nationals. But it doesn’t have to be. I must have drafted and redrafted this article so many times since the British public voted 52% to 48% to leave the European Union (EU) on 23 June 2016. Perhaps it was a case of the Brexit Blues which led me to struggle with this particular piece. Fellow bloggers elsewhere seemed able to produce articles on the impact of Brexit on any number of industries and sectors. Indeed, I had come across numerous articles on the impact of Brexit on EU nationals and EU workers.

And yet for all the articles written, I’m not sure that EU nationals appreciate that things are not as bleak as they first appear; that they have options for securing their status in the UK and that the sooner they begin thinking about next steps, the better. With this in mind, I finally felt upbeat about putting pen to paper.

EU nationals and ‘Treaty Rights’

First of all, it’s worth highlighting which nationals we are talking about.

EU nationals include:

Austria France Malta
Belgium Germany Netherlands
Bulgaria Greece Poland
Croatia Hungary Portugal
Republic of Cyprus Ireland Romania
Czech Republic Italy Slovakia
Denmark Latvia Slovenia
Estonia Lithuania Spain
Finland Luxembourg Sweden

In addition, nationals outside of the EU, but within the European Economic Area (EEA) that may also enjoy free movement are:

Iceland Liechtenstein Norway

The only exception is Switzerland, which is neither a member of the EU or EEA but whose nationals may also enjoy the same rights.

In a nutshell, Treaty Rights’ and ‘free movement’ are the rights that EU nationals and their family members enjoy to travel and relocate to the UK (and other parts of the EU) to take up employment and seek work. Not just that, EU nationals may also study in the UK, establish and grow a business, live off their savings or continue their retirement.

Brexit is unlikely to change this. Such entitlements will continue for the next few years as the UK still remains an active member of the EU.

In fact, the referendum outcome merely informed the government that the majority of British nationals wish to leave the EU (however small that majority may be). The outcome is not legally binding though the acting Prime Minister, Theresa May, is committed to honouring the outcome, citing that ‘Brexit means Brexit’.

The nature and timing of any changes to the status of EU nationals presently in the UK will be better understood once the UK formally activates Article 50 of the Lisbon Treaty (the legal instrument giving notice of the UK’s intention to leave the EU). At that point, the UK will begin to put forward its proposed terms to the EU Member States during that 2-year negotiation process.

With this in mind, it may be easy for EU nationals to wait and see what happens. After all, with everything remaining the same for at least the next 2-years, why panic?

Fair point. The answer is actually two-fold. On one hand, the rights of EU nationals or EU workers in the UK is likely to be protected beyond 2 years by way of transitional or interim immigration arrangements. But on the other, EU nationals will likely have to demonstrate, by way of documentary evidence, that they have been exercising their Treaty Rights in the UK at a certain point so as to fall within the transitional arrangements. The difficulty for EU nationals (and immigration advisers carefully scrutinising this area) is that we do not know what those transitional arrangements will be and what parameters will be set by the Home Office (the UK government department responsible for immigration matters).

Rather than the wait-and-see approach, EU nationals may wish to submit an application to the Home Office at the earliest opportunity.

Permanent Residence status

For instance, EU nationals exercising Treaty Rights in the UK for 5 years automatically acquire permanent residence in the UK. Previously, they never needed to give their status a second thought. Proving their entitlement to take employment in the UK was as simple as presenting a valid EU passport or ID card.

Post-Brexit, it may be sensible for EU nationals to submit an application to the Home Office to certify their permanent residence status for added security. Such applications are onerous and time consuming, which is why many EU nationals avoided submitting applications up to this point.

EU nationals will be required to submit documentary evidence to demonstrate that they have been exercising Treaty Rights for the last 5 years (or less depending on certain circumstances).

In addition, they must show that they have made the UK their home and resided here for a continuous period. Holidays and trips abroad will be taken into account and should not be so excessive as to cause the Home Office to surmise that the EU national did not actually make the UK their permanent home.

Given the number of documents involved, the application process can take 6 months for the Home Office to conclude. Indeed, a recent report highlighted that the Home Office were inundated with applications of this type. I’m sure you can see why that would be the case!

The added benefit of this approach is that it provides EU nationals with the additional identity documents required for an application for British Citizenship, once they have resided in the UK for 6 years and can evidence their permanent residence. Having dual British and European nationality can be especially advantageous for many EU nationals.

For those that have already certified their permanent residence and have lived it the UK for at least 6 years, it may be time to consider making an application for British nationality.

Even if EU nationals chose not to submit an application to certify their residence status, collating the above documents, for themselves and any family members, will be prudent so as to comply with any transitional arrangements that will likely be introduced.

Registration Certificate

EU nationals that have not quite exercised Treaty Rights in the UK for a full 5 years, submitting an application for a registration certificate to certify their status to date, may be a better option.

EU nationals had little need to submit such an application unless they wanted further proof of their entitlements to access certain services in the UK. However, non-EU family or extended family members may be familiar with this process.

Fortunately, this application can be submitted by post and in person and can therefore be quicker to process.

Should the EU national come to be in the UK for 5 years Post-Brexit, it may more straightforward for them to convert that status to permanent residency.

Conclusion

Brexit has led to EU nationals to question their immigration status in the UK for the first time. Despite suffering from a dose of Brexit Blues, the situation does not need to be bleak. Nothing has changed and there is an expectation that post-Brexit, transitional arrangements will be put in place to respect the entitlements of EU nationals that have made the UK their home.

That does not mean however, that EU nationals should do nothing. It may be prudent for EU nationals to assess how to solidify and best protect their status in the UK, by way of making an application to recognise their permanent residence, applying for a residence certificate, collating documents just-in-case, or applying to become a British Citizen. Such applications will require EU nationals to evidence that they have been exercising Treaty Rights in the UK and that they have made the UK their permanent home. Given that EU nationals have to provide details of any absences from the UK for holidays or any other time spent abroad, what EU nationals should avoid doing in the short term is leaving the UK and returning to mainland Europe in order to see what happens. Doing so will likely break the chain of continuous leave in the UK and that’s when options for EU nationals could be compromised.

Should you require any help with your EU status, why not arrange a consultation with me to discuss your options? The email address is [email protected]

The Latest on Right to Work Checks and Illegal Workers

Thomas Chase Immigration - St Paul's

On 12 July, the Home Office published updated guidance for employers to following the commencement of illegal working provisions.

The law on preventing illegal working is set out in sections 15 to 25 of the Immigration, Asylum and Nationality Act 2006 (the 2006 Act) and sections 24 and 24B of the Immigration Act 1971. On 12 July 2016, sections 34 and 35 of the Immigration Act 2016 (the 2016 Act) were commenced.

Section 34 of the 2016 Act amends the Immigration Act 1971 by inserting a new offence of illegal working (section 24B). Section 35 amends section 21 of the 2006 Act sets out the criminal offence of employing a worker with no legal entitlement to do so in the UK.

Background

Employers continue to have a duty to prevent illegal working in the UK. Employers are expected to do so by carrying out prescribed document checks on candidates before employing them to ensure they are lawfully allowed to work. For employees with time-limited permission to work in the UK, employers are expected to carry out more regular and time appropriate checks. See my earlier article on right to work document checks: Click hereBy adhering to the prescribed right to work checks, an employer will have a statutory excuse and may not have to pay a civil penalty should they be found to have employed an illegal worker.

Illegal workers include but are not limited to:

  • Students with expired visas, or students working more hours than they’re allowed to
  • People who work on a visitor’s visa
  • Those carrying out roles and functions not listed on their visa

The offence of illegal working is detailed as follows:

With effect from 12 July 2016, under section 24B of the 1971 Act (as inserted by section 34 of the 2016 Act), a person commits the offence of illegal working if he is:

  • Subject to immigration control and works when disqualified from doing so by reason of his immigration status; and
  • At the time, he knows or has reasonable cause to believe that he is disqualified from working by reason of his immigration status.

A person has been disqualified by reason of his immigration status if:

  • He has not been granted leave to enter or remain in the UK; or
  • His leave to enter or remain in the UK:
    • is invalid
    • has ceased to have effect (whether by reason of curtailment, revocation, cancellation, passage of time, or otherwise), or
    • is subject to a condition preventing the person from doing work of that kind.

What does this actually mean in practice?

An employer may commit the offence of employing an illegal worker if they employ a person who does not have permission to work in the UK and, more importantly, the employer knows or has reasonable cause to believe that the person has no right to do the work in question.

As a result, the employer can no longer evade prosecution where the investigating body cannot prove that the employer knew that the employee had no permission to work. The amended offence enables employers to be prosecuted where they have reasonable cause to believe that the employee could not undertake the employment, even where they have perhaps deliberately ignored information or circumstances that would have caused the employer to know that the employee lacked permission to work.

The new offence attempts to close some loopholes that existed. Further, the provisions no longer apply to employees only, but also to apprenticeships and the self-employed.

Penalties

Employers suspected of employing an illegal worker will be issued with a ‘referral notice’ informing them that:

  • The matter is being considered
  • Outlining the possible penalties. That is an unlimited fine (also known as a ‘civil penalty’) for each illegal worker

An employer may avoid a fine where they can demonstrate that they carried out the correct right to work checks. This highlights again how important it is for employers to not only make proper checks but also to retain records of those right to work checks.

Once the matter has been investigated and the employer is found to be liable for employing an illegal worker, the employer may be served with a civil penalty. The employer will then be given 28 days to respond, make payment as detailed in the notice or lodge an appeal. Not only that, but the employer may find their business details and results of the civil penalty notice made public.

For the individual concerned, should they be found to have worked without permission, their wages can be seized as if it were the proceeds of crime and they may face imprisonment and removal from the UK.

Conclusion

It cannot be stressed enough the need for businesses to seek immigration advice at the earliest to ensure that they are meeting (or continuing to meet) their legal obligations when employing workers. If done properly, employers can get on with their primary concern, running and growing their business. Fail to carry out correct right to work checks and an employer can find themselves facing severe penalties, including crippling fines, imprisonment and possible reputational damage. Given the penalties and government’s appetite for managing immigration issues, the costs of securing legal advice to ensure compliance far outweigh the risks of employing an illegal worker.

7 Changes to Tier 2 That You Need To Be Aware Of

The UK Government recently announced fundamental changes to the Tier 2 categories.

In 2015, the government had commissioned the independent Migration Advisory Committee (MAC) to review the Tier 2 immigration categories. The MAC were specifically requested to advise on how to make the Tier 2 criteria more robust yet flexible enough to allow key skills shortages to be met within the UK.

Having considered MAC’s recommendations and in March 2016 announced key changes to Tier 2.

Here are 7 changes that HR professionals need to be aware of:

  1. Tier 2 (General) threshold to increase

From the autumn 2016, the Tier 2 (General) salary thresholds for experienced workers will be increased to £25,000 per annum. A further increase of £5,000 to £30,000 will apply from April 2017 onwards. The Government announced that some health and education professionals will be exempt from the higher threshold until July 2019. The minimum threshold of £20,800 for new entrants will be maintained.

Nurses, medical radiographers, paramedics and secondary school teachers in mathematics, physics, chemistry, computer science and Mandarin will be exempt from the new salary threshold.nurses, medical radiographers, paramedics and secondary school teachers in mathematics, physics, chemistry, computer science and Mandarin from the new salary threshold.

  1. Tier 2 ICT salary threshold

From autumn 2016, the minimum salary threshold for the Tier 2 ICT Short Term category will be £30,000 per annum. Tier 2 ICT Graduates will see the salary threshold decrease from £24,800 to £23,000 per annum.

For those Tier 2 ICT transferees looking to reside and work in the UK for between 5 and 9 and who are classed as higher earners, will see the annual salary threshold requirement fall from £155,300 to £120,000.

  1. Changes to Tier 2 ICT categories

The current intra-company transfer (ICT) provisions will be simplified by requiring all intra-company transferees to qualify under a single visa category. From autumn 2016, the Tier 2 ICT Skills Transfer category will no longer be available to new applicants. From April 2017, the Tier 2 ICT Short Term visa route will also be closed to new applicants. This will no doubt present problems for larger companies that currently transfer overseas employees to the UK to gain or impart knowledge for the benefit of the wider organization.

  1. Immigration Health Surcharge

Currently, the Immigration Health Surcharge (IHS) applies to the Tier 2 (General) category and not Tier 2 ICTs. This will change from autumn 2016, when all Tier 2 ICTs will be required to pay the IHS.

  1. Tier 2 ICT pre-qualifying period

At present, all Tier 2 ICTs must have been employed within the company for 12 months prior to the UK assignment. From April 2017, this requirement will be removed for all Tier 2 ICT applicants in receipt of over £73,900 per annum.

  1. Immigration Skills Charge

The Government recognizes that there is immediate skills gap in the UK particularly in some sectors on one hand. On the other hand, the Government wants The The to ‘incentivize’ businesses to reduce their reliance on overseas workers and instead invest in training and up-skilling UK workers. To help achieve this, an Immigration Skills Charge will be levied on Tier 2 sponsors at the sum of £1,000 per Certificate of Sponsorship issued per year.

Such a sum will prove eye watering to many employers especially small A reduced rate of £364 will apply to small and charitable sponsors, as defined by Immigration and Nationality (Fees) Regulations. PhD level occupations, the Intra Company Transfer Graduate Trainee category, and those switching from a Tier 4 student visa to a Tier 2 visa will be exempt.businesses. Therefore, a reduced rate of £364 will apply to small and charitable sponsors.

Exemptions will apply to PhD level occupations, Tier 2 ICT Graduate Trainees, and applicants switching from Tier 4 student visas to a Tier 2 visa.A reduced rate of £364 will apply to small and charitable sponsors, as defined by Immigration and Nationality (Fees) Regulations. PhD level occupations, the Intra Company Transfer Graduate Trainee category, and those switching from a Tier 4 student visa to a Tier 2 visa will be exempt.

  1. Nurses

Fortunately, nurses will remain on the Shortage Occupation List, but employers will need to carry out a resident labour market test before recruiting a non-EEA nurse.

Fortunately, nurses will remain on the Shortage Occupation List.  That said, HR professionals and employers will need to carry out a resident labour market test before recruiting a nurse from outside of the UK and EU.

What hasn’t changed?

With so many changes to the Tier 2 provisions, HR professionals and businesses may be pleased to hear that they may continue to recruit non-EEA graduates from UK universities without having to first conduct a resident labour market and without being subject to the annual limit on Tier 2 (General) places.

Further, Tier 2 (General) places will remain at 20,700 places per year.

Contact Thomas Chase Immigration for more information of the changes to the Tier 2 category and how they may impact upon you and your business.

3 Simple Steps to Confident Right to Work Checks

Thomas Chase Immigration - Right to Work Checks

Right to Work checks can cause HR professionals and businesses no end of stress. Get it wrong and the Home Office can impose heavy (and sometimes crippling) fines or civil penalties of £20,000 per unlawfully employed person. A sponsor licence can be suspended and then there is the reputational damage and at worse, criminal convictions of up to 5 years for serious offenders.

As if that wasn’t bad enough, Immigration Officers have the power to effectively close business operations for up to 48 hours. It’s not uncommon for HR professionals to confess that they are absolutely scared of getting this wrong and that hiring nationals from outside of the UK and EU can cause a sense of nervousness.

Yet finding a fantastic applicant to fill a key skills gap is a cause for celebration. The fact that the applicant has signed the employment contract and turned up for their first day of work is credit to the company and should be the start of an amazing journey together between employer and potential employee.

So how can HR professionals feel confident about the Right to Work checks? I advise them to follow these 3 simple steps:

  1. Obtain
  2. Check
  3. Copy and Retain.

Obtain

The key here is documents, documents, documents. Whilst the Home Office has placed a legal obligation on employers and HR professionals to check that the applicant has a right to legally work in the UK before the applicant starts working, the Home Office has also provided a list of original documents that it believes properly evidences such entitlements.

Those documents are partitioned into ‘Lists’ according to the current immigration status of the applicant.

List A Documents

Where an applicant has a permanent right to work in the UK, HR professionals may accept any documents from List A. The documents must be seen in their original format and must be obtained prior to the applicant starting their employment with the company.

As the applicant has a permanent right to reside and work in the UK, HR professionals will not need to conduct any further Right to Work checks for that applicant.

The company will have also established a continuous statutory excuse throughout that time. As a result, if for some reason, the applicant was later found not to have a permanent right to work in the UK, the employing company will have an excuse in law against liability for a civil penalty.

List A documents include:

1. A passport showing the holder, or a person named in the passport as the child of the holder, is a British citizen or a citizen of the UK and Colonies having the right of abode in the UK
2. A passport or national identity card showing the holder, or a person named in the passport as the child of the holder, is a national of a European Economic Area country or Switzerland
3. A Registration Certificate or Document Certifying Permanent Residence issued by the Home Office, to a national of a European Economic Area country or Switzerland
4. A Permanent Residence Card issued by the Home Office, to the family member of a national of a European Economic Area country or Switzerland
5. A current Biometric Immigration Document (Biometric Residence Permit) issued by the Home Office to the holder indicating that the person named is allowed to stay indefinitely in the UK, or has no time limit on their stay in the UK.
6. A current passport endorsed to show that the holder is exempt from immigration control, is allowed to stay indefinitely in the UK, has the right of abode in the UK, or has no time limit on their stay in the UK
7. A current Immigration Status Document issued by the Home Office to the holder with an endorsement indicating that the named person is allowed to stay indefinitely in the UK or has no time limit on their stay in the UK, together with an official document giving the person’s permanent National Insurance number and their name issued by a Government agency or a previous employer
8. A full birth or adoption certificate issued in the UK which includes the name(s) of at least one of the holder’s parents or adoptive parents, together with an official document giving the person’s permanent National Insurance number and their name issued by a Government agency or a previous employer
9. A birth or adoption certificate issued in the Channel Islands, the Isle of Man or Ireland, together with an official document giving the person’s permanent National Insurance number and their name issued by a Government agency or a previous employer
10. A certificate of registration or naturalisation as a British citizen, together with an official document giving the person’s permanent National Insurance number and their name issued by a Government agency or a previous employer

List B Documents

Where an applicant has a limited right to work in the UK, List A documents will not be appropriate. Instead, HR professionals may accept documents within the List B class of documents. Again, the documents must be seen in their original format and accepted prior to the commencement of employment.

Follow-up Right to Work checks will be required due to the temporary nature of the applicant’s stay in the UK. Further checks will normally be required when the employee’s temporary permission to be in the UK has expired and been renewed.

Documents in this category are divided into 2 groups.

List B – Group 1

1. A current passport endorsed to show that the holder is allowed to stay in the UK and is currently allowed to do the type of work in question
2. A current Biometric Residence Permit endorsed to show that the holder is allowed to stay in the UK and is currently allowed to do the type of work in question
3. A current Residence Card (including an Accession Residence Card or a Derivative Residence Card) issued by the Home Office  to a non-European Economic Area national who is a family member of a national of a European Economic Area country or Switzerland or who has a derivative right of residence
4. A current Immigration Status Document containing a photograph issued by the Home Office to the holder with a valid endorsement indicating that the named person may stay in the UK, and is allowed to do the type of work in question, together with an official document giving the person’s permanent National Insurance number and their name issued by a Government agency or a previous employer

Here, HR professionals have a time-limited statutory excuse which expires when the employee’s permission to be in the UK expires. Follow-up checks will need to be carried out when the document evidencing their permission to work expires.

List B – Group 2

1. A Certificate of Application issued by the Home Office under regulation 17(3) or 18A (2) of the Immigration (European Economic Area) Regulations 2006, to a family member of a national of a European Economic Area country or Switzerland stating that the holder is permitted to take employment which is less than 6 months old together with a Positive Verification Notice from the Home Office Employer Checking Service.
2. An Application Registration Card issued by the Home Office stating that the holder is permitted to take the employment in question, together with a Positive Verification Notice from the Home Office Employer Checking Service.
3. A Positive Verification Notice issued by the Home Office Employer Checking Service to the employer or prospective employer, which indicates that the named person may stay in the UK and is permitted to do the work in question

For List B – Group 2, HR professionals have a time-limited statutory excuse against liability which expires 6 months from the date specified in the Positive Verification Notice. HR professionals should therefore carry out a follow-up check when this notice expires.

Check

Once the documents have been obtained, HR professionals must check that the documents are:

  • Genuine; and
  • The applicant presenting the documents  is the rightful holder; and
  • The applicant is allowed to do the type of work detailed in their employment contract and Certificate of Sponsorship, where applicable.

It’s worth noting that the Home Office do not expect HR professionals to be forgery or immigration experts. However, there are some common sense questions that HR professionals should ask themselves when checking documents:

1. Does the photograph on the document match the appearance of the person before you? For instance, the document may be genuine but the applicant in front of you may not be entitled to it.
2. Does the document appear to be genuine? Does it appear to have been tampered with? Again, expertise in forgery is not necessary but you will be amazed at the spelling mistakes some forgers make with the names of countries and the word ‘Embassy’.

For some EU documents that differ from one European country to the next, it can be difficult to determine which document is genuine and which is not? If presented with an EU document and you are not sure if it is genuine, I recommend making a quick visit to PRADO – Public Register of Authentic travel and identity Documents Online at http://www.consilium.europa.eu/prado/en/prado-start-page.html which is a great source of information in such instances.

3. Is the date of birth consistent with the appearance of the person in front of you? If not, further documents may need to be provided.
4. Does the applicant still have valid leave to be in the UK? If the document evidencing their leave has expired, evidence should be sought and verified to establish if an application has been submitted to the Home Office for further leave to stay in the UK.
5. Are there any work restrictions on the applicant’s ability to carry out the work stated in their employment contract? For instance, some students may take up employment though there may be restrictions placed on term-time employment.
6. Still have doubts? Have you checked the reasons for any differences in names across documents? Such doubts need to be handled with care so as to prevent the employer/ employee relationship getting off to a bad start. There may be a plausible explanation for discrepancies which can be reasonably addressed by way of, for instance, inspection of an original marriage certificate, divorce decree, deed poll. If so, supporting documents will need to be photocopied and a copy kept on file.

Copy and Retain

The applicant has provided their documents, the documents appear to be in order and the applicant has valid leave to be in the UK and can perform the duties required.

The final step to key. In order to demonstrate that the Right to Work checks have been properly carried out and prevent and liability against a civil penalty, HR professionals are advised to photocopy and retain the documents. This administrative area is where companies tend to fall short in their immigration responsibilities.

When photocopying documents, it is advisable to make a clear copy of each document. The copy should be one that cannot be altered and there needs to be a note made of date that the checks took place.

The copy of the document will need to be obtained in the personnel files either electronically or in hard copy.

For passports, HR professionals need not photocopy the whole documents, just the pages which contain details of the document expiry date, nationality, date of birth, signature, leave expiry date, biometric details and photograph, information showing the applicant’s entitlement to be in the UK and ability to undertake the work detailed in the employment contract. For other documents, it may be necessary to copy the document in full. For example, both sides of a Biometric Residence Permit and Marriage Certificate demonstrating a change in name.

Conclusion

By taking the above steps of Obtain, Check, Copy and Retain, HR professionals should find Right to Work checks to be less complex and less difficult to carry out. If in doubt, seek expert immigration advice!

Written by Carla Thomas – Managing Director at Thomas Chase immigration. Thomas Chase Immigration offer immigration help to individuals and families.

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