7/1/2014 Todays Presenters Annabel Mace Partner Phone +44 207 655 - - PowerPoint PPT Presentation

7/1/2014 1 Essential Immigration Compliance Update

Annabel Mace – Partner and Head of UK Business Immigration Supinder Sian – Partner

1 July 2014

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squirepattonboggs.com Annabel Mace Partner Phone +44 207 655 1487 Mobile +44 7825 204 764 annabel.mace@squirepb.com

Today’s Presenters

Supinder Sian Partner Phone +44 207 655 1741 Mobile +44 7545 935617 supinder.sian@squirepb.com

Follow us on twitter.com/SPB_Immigration

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• Changes to the Law on the Prevention of Illegal Working
• Tier 2 Sponsorship Essentials
• Tier 2 Sponsorship Pitfalls
• Tier 2 Sponsor Compliance Obligations
• Key Audit Preparation Points

Introduction

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• No more annual follow-up checks for those with limited leave to remain

although a further check must be made when permission expires

• Shorter list of right to work documentation
• Employers must now check term and vacation dates of non-EEA students

studying at UK educational institutions

• Extension of the grace period from 28 to 60 days for conducting right to work

checks on employees acquired as a result of a TUPE transfer

• Revised method for calculating civil penalty levels including increase in

maximum penalty to £20,000

What’s changed - at a glance

Preventing Illegal Working

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• An employer will commit an offence and be liable for a civil penalty if it employs

a person aged 16 or over who does not have the right to work in the UK and carry out the work in question.

• Employers can establish a ‘statutory excuse’ against illegal employment by

checking specified documentation which shows that the employee is allowed to work in the UK in the role in which they are being employed.

• A statutory excuse will protect the employer from a civil penalty but cannot be

used if the employer is knowingly employing someone illegally

• The specified documentation is set out in the Home Office’s List A and List B

(Group 1 and Group 2) https://www.gov.uk/government/publications/right-to-work-checklist

Key Principles

Preventing Illegal Working

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• A passport showing that the holder is a British citizen or citizen of the UK and

Colonies having the right of abode in the UK

• A Swiss or EEA passport or national identity card (except Croatia)
• A current non-EEA passport showing that the holder is exempt from

immigration control, has indefinite leave to remain in the UK, has the right of abode in the UK or no time limit on their stay in the UK

• A current Biometric Residence Permit (BRP) issued by the Home Office

indicating that the holder is allowed to stay in the UK indefinitely or has no time limit on their stay in the UK

• A full birth or adoption certificate issued in the UK including the names of at

least one of the holder’s parents together with an official document giving the holder’s NI number and name.

Common examples of List A documents include:

Preventing Illegal Working

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List B Group 1

• a current passport (non-EEA/UK) endorsed to show that the holder is allowed

to stay in the UK and currently allowed to do the type of work in question (e.g. dependant visa, Tier 1 (General) visa, Tier 2 visa, Tier 4 visa);

• a current Biometric Residence Permit issued by the Home Office indicating that

the holder is currently allowed to stay in the UK and to do the work in question. List B Group 2

• Application Registration Card (asylum) OR Certificate of Application (under

Immigration (EEA) Regulations 2006) less than 6 months old PLUS

• Positive Verification Notice (PVN) from the Home Office’s Employer Checking

Service (ECS)

• A PVN alone will also suffice for 6 months if reasonable grounds to believe the

employee has a pending in-time application or appeal with the Home Office.

Common examples of List B documents include:

Preventing Illegal Working

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• Employer must obtain original document(s) before employment begins
• One of the single documents or two of the documents in specified

combinations from List A OR

• One of the single documents or two of the documents in specified

combinations from List B Group 1 or Group 2 (In the event of a TUPE transfer, inheriting employer has 60 days from date of transfer in which to carry out right-to-work checks)

‘3 Step Document Check – ‘OCC’

Preventing Illegal Working

STEP 1 - OBTAIN

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• Employer checks the documents are genuine, the person presenting

them is the prospective employee or employee, the rightful holder and allowed to do the work in question

• For each document presented:
• Are photos and dates of birth consistent across documents and with the

person’s appearance:

• Check expiry dates not passed
• Check work restrictions to see if person permitted to work for you and do the

work in question

• Are you satisfied documents genuine and have not been tampered with and

belong to holder?

• Request further documents e.g. marriage certificate if two documents have

different names

Preventing Illegal Working

STEP 2 - CHECK

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• Employer photocopies or scans documents in a format that cannot later

be altered and retains the copy securely: electronically or in hard copy

• Passports: copy any page with the document expiry date, nationality, date of

birth, signature, leave expiry date, biometric details and photograph and any page containing information indicating the holder has an entitlement to enter or remain in the UK and undertake the work in question (no longer necessary to copy passport cover!)

• All other documents: copy them in full (e.g. both sides of a Biometric

Residence Permit) NB - make a record of the date on which you conducted the check to show it was carried out before employment began and record the work permission end date separately

Preventing Illegal Working

STEP 3 - COPY

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• Up to and including 15 May 2014, annual follow-up checks were required for all

employees with limited leave to remain in the UK whose employment started

• n or after 29 February 2008
• From 16 May 2014, following the initial pre-employment check:
• List A document holders i.e. British and EEA nationals (except Croatians)

and non-EEA nationals settled in the UK – no further checks required

• List B Group 1 document holders i.e. non-EEA nationals (plus Croatians)

with limited leave to remain in the UK – carry out a follow-up check on or before expiry of the document produced at the initial check

Carrying out follow-up checks

Preventing Illegal Working

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• List B Group 2 document holders i.e. non EEA nationals (plus Croatians)

who have a pending Home Office application or appeal (employer will therefore have carried out an ECS check and obtained a PVN before employment began) – carry out a follow-up check within 6 months of the date of the PVN and then do further ECS check at that point if necessary i.e. because application still pending.

• For an existing employee who initially produced List B Group 1 or Group 2

documentation, when carrying out the follow-up check as above, if you are reasonably satisfied that he has a pending immigration application or appeal against a Home Office decision, your time-limited statutory excuse obtained from the initial check will continue for a further 28 days after the follow-up check during which you must obtain a PVN from the ECS which will give you a statutory excuse for a further six months.

Carrying out follow-up checks (continued)

Preventing Illegal Working

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• If the statutory excuse is extended for 28 days, the Home Office recommends

waiting 14 days from the submission of the application or appeal before requesting a PVN so that the application/appeal can be registered on their

• systems. Existing employees can continue to work during this time but the ECS

request must be made and a PVN obtained within 28 days of the permission to work having expired.

• The ECS should normally provide a result within 5 working days of a request.
• The ECS will only issue a PVN for a prospective or existing employee where

the application was made before their permission to be in the UK expired or their appeal was submitted within the time allowed for submitting that appeal.

Carrying out follow-up checks (continued)

Preventing Illegal Working

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• It is possible to submit an application to the Home Office after the employee’s

permission to be in the UK has expired (usually by no more than 28 days) and for that application still to succeed but the employee would not be permitted to work until the application is approved.

• If you receive a Negative Verification Notice (NVN) for an existing employee,

you should promptly begin a potential dismissal process allowing the employee a reasonable period (usually no longer than a few working days) to demonstrate their right to work in the UK.

• If you have received an NVN but still have reasonable grounds to believe that

the employee has the right to work in the UK, you are not obliged to dismiss but you will have no statutory excuse against a civil penalty if, in fact, he does not have the right to work - careful risk assessment therefore required.

Carrying out follow-up checks (continued)

Preventing Illegal Working

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• From 16 May 2014, if you are provided with documentation to show that the

holder is a student with a limited right to work in the UK during term time, you must obtain and retain evidence of their academic term and vacation dates in the form of:

• printout from the education institution's website or other material published

by the institution setting out its timetable for the student's course of study (check the website to confirm the link is genuine); or

• copy of a letter or email addressed to the student from their education

institution confirming term time dates for their course; or

• letter addressed to employer from the education institution confirming term

time dates for the student's course.

Students

Preventing Illegal Working

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• Up to and including 15 May 2014, employers were able to accept indefinite

leave to remain or a valid unexpired visa or residence permit (but not a Certificate of Right of Abode) in an expired passport as evidence of the right to work

• On or after 16 May 2014 passports other than those held by a British Citizen or

a national of a European Economic Area (EEA) country or Switzerland must not have expired in order to provide a statutory excuse against a civil penalty for illegal working

• This means that prospective non-EEA employees must be able to provide a

current passport or a current BRP evidencing their right to work before employment begins. Existing non-EEA employees (assuming initial right to work was carried out correctly) only need to provide current passport (or BRP) at the point of a follow-up check (if required).

Expired Passports

Preventing Illegal Working

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Civil penalty of up to £20,000 per illegal employee

• Where employment started on or after 29 February 2008 and employer has

failed to carry out prescribed right to work check on or after 16 May 2014 (up to £10,000 for breaches prior to this)

• Can be imposed without absolute proof of illegal working, then up to employer

to object or appeal against penalty Criminal Penalty

• Criminal offence of knowingly employing illegal workers
• Potentially unlimited fine and/or imprisonment up to two years
• Directors, Company Secretaries and managers may also be liable if offence

committed with their consent or as a result of their negligence

NB - sponsor licence could also be revoked, suspended or downgraded for breach of sponsor duties including illegal working. If a licence is revoked, the employment of all sponsored migrants will have to be terminated if alternative permission to work cannot be obtained.

Preventing Illegal Working

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• Trust based system - essential to meet Tier 2 Sponsor compliance duties.
• Sponsoring employer assigns a Certificate of Sponsorship (‘CoS’) to qualifying

individual who then applies for visa (entry clearance) from abroad or ‘further leave to remain’ from within UK.

• Only specific full-time role/genuine vacancies skilled to NQF Level 6 + (with

limited exceptions) and with minimum prescribed salary can be sponsored.

• Individual is tied to sponsor and specific role via Home Office SOC codes.
• Sponsored migrant must fulfil criteria for financial maintenance (unless sponsor

prepared to certify).

• Two main categories: Tier 2 (General) and Tier 2 (Intra - Company Transfer)

Tier 2 Sponsorship

Tier 2 Sponsorship Essentials

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• Tier 2 (General) is generally for ‘new hires’ and usually requires advertising in

a specific format and medium to fulfil the Resident Labour Market Test (‘RLMT’) (can lead to indefinite leave to remain (ILR))

• Sponsor must complete RLMT unless the role is exempt e.g. shortage
• ccupation OR salary £153,500+ OR switching from Tier 1 PSW or Tier 4

having completed degree in UK OR extension in same occupation

• Minimum salary at least £20,500 or that specified in SOC code (whichever is

higher)

• Once RLMT completed, unless role is exempt, sponsor must also apply for

Restricted CoS before assigning CoS (exceptions include: salary £153,500+, extensions, changing sponsored employment or switching within the UK)

• Sponsored migrant must fulfil criteria for English language

Overview of Tier 2 (General)

Tier 2 Sponsorship Essentials

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• Long Term Staff (visa for up to 5 years): for those employed in linked company

abroad for 12 months + with minimum salary of £41,000 *

• Short Term Staff (visa for up to 12 months): for those employed in linked

company abroad for 12 months + with minimum salary of £24,500 *

• Graduate Trainee (visa for up to 12 months): for those employed in linked

company abroad for 3 months + for training only as part of a structured accelerated promotion programme with minimum salary of £24,500 *

• Skills Transfer (visa for up to 6 months): for those employed in linked company

abroad for purpose of acquiring skills and knowledge needed to perform role abroad or impart specialist skills to UK workforce with salary of £24,500 *

* Or minimum rate in relevant SOC code whichever is higher

• Tier 2 (ICT) cannot not lead to ILR unless migrant entered UK before 6.4.2010

Overview of Tier 2 (Intra-Company Transfer)

Tier 2 Sponsorship Essentials

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• Increased minimum salary thresholds for Tier 2 applicants (as set out above)
• Tier 2 (General) and Tier 2 (Intra Company Transfer) Long Term Staff

applicants (providing not relying on lower ‘New Entrant’ salary) can now be granted up to five years’ leave to enter or remain in the UK at the outset (previously only 3 years followed by 2 year extension)

• Increase in maintenance funds for Tier 2 main applicants and dependants
• The Tier 1 (General) category will close for extension applications on 6 April

2015 (the category has been closed to new applicants since 2011) and for settlement applications on 6th April 2018.

Changes introduced in April 2014

Tier 2 Sponsorship Essentials

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• Advertise in two places including Jobcentre Plus/Universal Jobmatch

(obligatory unless salary of £71,600+) and website of a ‘prominent or professional recruitment organisation’ or sponsor’s own website (if global

• rganisation or 250+ employees)
• Ensure advertisement runs for at least 28 calendar days (can be two blocks of

14 days)

• Ensure advertisement content complies with strict Home Office requirements

with regard to content

• Be able to demonstrate that no suitable settled worker is available to fill role

Resident Labour Market Test (RLMT) requires that prior to assigning CoS, sponsor must:

Tier 2 Sponsorship Pitfalls – RLMT

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• job title
• main duties and responsibilities of the job (job description)
• location of the job
• indication of the salary package or salary range or terms on offer (ensure that

this can cover any negotiated increase in salary)

• skills, qualifications and experience required (you will only be able to reject a

settled worker in favour of a migrant worker if he/she does not have skills, qualifications and experience requested in the advert)

• the closing date for applications (and, ideally, starting date)

RLMT requires that adverts must contain the following content:

Tier 2 Sponsorship Pitfalls – RLMT

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• the name of the website or, for Jobcentre Plus ads, the logo of the relevant

government website hosting the job advertisement

• the full contents of the advert
• the vacancy reference number in the case of the Jobcentre Plus
• the date that the copy was taken
• the URL and
• the closing date for applications.

Take copies on first day and (ideally) last day of posting.

RLMT requires that once the adverts have been posted, sponsor should take copies showing the following:

Tier 2 Sponsorship Pitfalls – RLMT

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• Guidance says:
• all applications short-listed for final interview, in the medium they were received. For

example, emails, CV’s, application form etc.

• the names and total number of applicants short-listed for final interview.
• notes from the final interviews conducted and for each EEA national who was

rejected, showing reasons why they have not been employed.

• We say: keep list of all applicants and reasons for rejection even if no one

(other than proposed sponsored migrant) is shortlisted.

• Be aware that the Home Office may perceive that the issuing of offer letters to

proposed sponsored migrants before RLMT is completed is evidence that RLMT is not genuine.

RLMT requires that once selection process completed, if no suitable settled worker is identified, sponsor should keep the following documentation on file:

Tier 2 Sponsorship Pitfalls – RLMT

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• the migrant is overseas and their previous grant of Tier 2 leave has expired
• r elapsed; or
• the migrant is in the UK and has had a previous grant of Tier 2 leave,

switched to a different category and wishes to apply again under Tier 2 within 12 months of their previous Tier 2 leave expiring (very rare)

• Exceptions to the above:
• high-earners i.e. those who are applying to return to the UK under Tier 2

(General) with salaries of £153,500 or higher

• the migrant’s last grant of leave was as a Tier 2 (ICT) Skills Transfer,

Graduate Trainee or Short Term migrant and they are applying to return to the UK under Tier 2 (ICT) Long Term Staff

Tier 2 migrants are prevented from returning to UK under Tier 2 for 12 months where:

Tier 2 Sponsorship Pitfalls – ‘Cooling-Off’

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• With limited exceptions, Tier 2 (ICT) allows only for visas of up to 5 years (or 9

years for those with salaries of £153,500 or higher) – it’s intended to be a ‘temporary’ route only and cannot usually lead to ILR.

• Tier 2 (General) can lead to ILR after 5 years’ continuous sponsored employment

in the UK.

• BUT it’s not possible to switch from Tier 2 (ICT) to Tier 2 (General) from within

the UK (unless individual entered the UK under rules in place before 6 April 2010) and cooling-off period means that individual would be prevented from returning to UK for 12 months under Tier 2 if he leaves the UK and Tier 2 (ICT) sponsorship comes to an end (subject to limited exceptions). So, before sponsoring under Tier 2 (ICT), it’s essential to explore whether there is any intention that the role will last for longer than 5/9 years or that individual is seeking ILR – if YES, use Tier 2 (General) instead from the outset!

Cooling-off period can be a real issue because:

Tier 2 Sponsorship Pitfalls – ‘Cooling-Off’

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• Sponsored role must be matched to Home Office SOC code which specifies

key job tasks and minimum salary.

• SOC code will also confirm that the role is skilled to NQF level 6 or above.

This does not mean that the migrant must be educated to that level; it means that the work that he does must be pitched at that level.

• Review any promotions/change to role before offering to sponsored migrant

as where change takes migrant out of the sponsored SOC code a change of employment application will be required which may be subject to the RLMT.

• Any reduction in salary must adhere to minimum salary in SOC code (even if

due to part-time working). Exceptions: business wide reductions due to economic climate, maternity, paternity, long term sickness leave.

SOC Codes

Tier 2 Sponsorship Pitfalls – SOC Codes

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• English Language requirement for Tier 2 (General) – applicant must show he

is:

• a national of a majority English speaking country (for example, the United

States, Canada or Australia – NB not South Africa); or

• hold a degree or higher qualification taught or researched in English which is

recognised as equivalent to a UK Bachelor’s degree or above; or

• pass an English language test at the appropriate level, B1 – the test must be

from a Home Office approved test provider

• Tuberculosis testing is a requirement for those applying to come to the UK

under Tier 2 from specific countries including (but not limited to) China, India, Malaysia, Russia, South Africa, Thailand, Vietnam

Issues that can delay visa processing from outside the UK unless addressed early on:

Tier 2 Sponsorship Pitfalls – Entry Clearance

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• Not to employ a migrant (whether or not sponsored) if he or she is not allowed

to undertake the work in question and to stop employing if their entitlement to work ceases

• Only assign certificates of sponsorship to migrants who meet the requirements
• f the relevant Tier or category and are likely to comply with their conditions of

leave

• Ensure that any sponsored migrant is legally entitled to do the job in question

and has appropriate registration/professional accreditation where required

Key General Duties include:

Tier 2 Sponsor Compliance Obligations

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• Sponsors must keep the following documents on the sponsored migrant’s file

and make them available to Home Office officials for inspection:

• A copy of each sponsored migrant’s passport or immigration status

document showing evidence of entitlement to work in UK including Biometric Residence Permit (if applicable)

• Sponsored migrant’s current and historic contact details (including UK

residential address, telephone number and mobile number)

• Any documents relevant to the sponsored migrant and listed under Appendix

D (e.g. evidence of RLMT in the case of Tier 2 (General)) https://www.gov.uk/government/uploads/system/uploads/attachment_data/f ile/301065/SPONSOR_APP_D_04-14.pdf

Record Keeping Duties

Tier 2 Sponsor Compliance Obligations

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• If sponsored migrant does not turn up for his or her first day of work
• If sponsored migrant is absent from work for more than 10 working days

without permission

• If sponsored migrant’s contract of employment terminates for any reason
• If the employer stops sponsoring the migrant for any reason (e.g. migrant

moves into an immigration category that does not require sponsorship)

Sponsors must report the following information to the Home Office’s Sponsor Management System (SMS) – usually within 10 working days (non-exhaustive list):

Tier 2 Sponsor Compliance Obligations

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• If the sponsored migrant has a period of unpaid leave (e.g. sabbatical not

sickness/maternity) in excess of 4 weeks, sponsor must report this to Home Office and stop sponsoring migrant

• If there are any significant changes in the sponsored migrant’s circumstances

(e.g. promotion or material change in job title/work duties or change of salary

• ther than annual salary increments and bonuses or if the migrant’s

employment location changes)

• If there are any significant changes in the sponsor’s circumstances (e.g.

change in location or change in name, substantially changes the nature of its business or is involved in a merger or acquisition, change in authorising officer)

Tier 2 Sponsor Compliance Obligations

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• Carry out regular audits of all employee files to check that all employees have

evidence of entitlement to work in the UK

• Prepare a spreadsheet of all employees including migrant workers including

name, dates of employment, job title, current visa type, visa expiry date

• Be able to demonstrate understanding of 3 step OCC right-to-work check and

when follow up checks are required

• Flag visa expiry and reminders in Outlook or HR system
• Ensure that relevant documents listed in Appendix D are kept on each

sponsored migrant’s file (can be stored electronically)

• Ensure adequate and accessible systems in place for monitoring sponsored

migrant’s absences including sickness, holiday and unauthorised absence

Key Audit Preparation Points

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• Ensure line managers are aware of obligation to report sponsored migrant

unauthorised absences to HR so that this can be reported on SMS

• Ensure sponsored migrants are aware of their obligations to report changes in

address, contact details or immigration status to HR

• Put together a Sponsor Management System file including a copy of your

sponsor licence application documentation as well as a copy of Appendix D, Tier 2 Guidance, Prevention of Illegal Working Guidance

• Review and update linked UK and overseas entities listed on your sponsor

licence so that any UK entities you may wish to use to employ a migrant worker and any overseas entities from which you want to transfer staff under Tier 2 ICT are included.

• Review sponsor summary on a regular basis to ensure company and key

personnel details are up to date.

Key Audit Preparation Points

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Q&A

Immigration Compliance Update

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squirepattonboggs.com Annabel Mace Partner Phone +44 207 655 1487 Mobile +44 7825 204 764 annabel.mace@squirepb.com

Contacts

Supinder Sian Partner Phone +44 207 655 1741 Mobile +44 7545 935617 supinder.sian@squirepb.com

Follow us on twitter.com/SPB_Immigration

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