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Corporate Livewire – Immigration Law 2014

Anne Morris recently participated in Corporate Livewire roundtable designed to discuss the current Immigration Law landscape. Below are Anne’s responses.

1) Have There Been Any Recent Legislative Changes Or Interesting Developments?

Measures were introduced on 16 May 2014 to double the maximum penalty for employers who employ an illegal worker to £20,000.  Further changes were also made to the illegal working framework in particular to the way that employers undertake right to work checks.  The Government hope that the new changes will make it easier for employers to conduct the checks.  For example, the list of acceptable documents for right to work checks has been reduced and the frequency of repeat checks for people with time-limited right to work has also been reduced to the expiry of the person’s permission to work rather than annually.  However, it seems that employers still feel that they would prefer to carry out at least annual checks in order for them to be satisfied that their employee has permission to work.  Changes have been introduced to provide employers with a bit more certainty when conducting checks.  An extension of the statutory excuse for a maximum of 28 days beyond the expiry date of permission to work where the employer is reasonably satisfied that the migrant worker has submitted an extension application or has an appeal pending has been welcomed by employers.  There has also been a grace period up to 60 days for conducting right to work checks on those acquired as a result of a TUPE transfer.  For employers employing students, it is now necessary to request term and vacation times from the student’s education sponsor throughout the period the student is working for them.  It remains to be seen whether these new measures will make it easier for employers when conducting checks.

2) Can You Talk Us Through The Visa Application Process In Your Jurisdiction?

The points-based immigration system, introduced in 2008 is the main immigration route for migrants from outside the European Economic Area (EEA) or Switzerland to come to the UK to work, study, invest or train.  There are a total of five tiers with Applicants required to pass points-based assessment in order to be issued a visa.  Tier 1 has been opened for ‘high value’ migrants such as entrepreneurs, investors.  Tier 2 covers ‘skilled workers’ with a job offer from a UK-based employer Sponsor.  Tier 3 is not at present open but was designed for low-skilled workers.  Tier 4 is a category solely for student applicants holding an offer from a UK educational provider.  Tier 5 comprises of five sub-categories of temporary workers and the Youth Mobility Scheme enabling those to come into the UK for a working holiday.  Other than the Points-based system, the other main system is entry based on family life for those non EEA nationals wanting to come or stay in the UK based on family life with a British citizen, settled person or refugee.  These are governed by what is known as the Appendix FM Immigration Rules.  Applicants would apply for a visa before they travel at one of the Visa Application Centres in a country where they are a national or have a right to reside.

3) Do Immigration Lawyers Still Have To Deal With A Plethora Of Red Tape When It Comes To Visa Applications And Are There Any Fast Track Solutions To Help Make The Process Smoother?

One of the areas heavily affected by red tape bureaucracy is the Tier 2 visa category.  Generally speaking for those looking to enter the UK as a Tier 2 (General) skilled migrant a number of requirements with the first step ensuring the role is at a level and salary permitted by the Home Office.  The vacancy must then be advertised for 28 days to resident workers (subject to a few exemptions) and certain documentation kept confirming that the migrant worker is most suitable.  Then, there is the applying for and assigning of the Restricted Certificate of Sponsorship.  For certain countries, the migrant would have to undergo a Tuberculosis test and English test.  Finally the visa application can be made.  Of course, there would be the maintaining of a sponsor licence which is granted to a UK sponsor following much scrutiny by the Home Office.  It is clear that the Home Office basically dictates which non-EEA migrant you can employ.  In order to maintain a valid sponsor licence, the sponsor must comply with a number of sponsor duties including record keeping and reporting.  If these duties are not complied with, the employer’s licence could be revoked and they would no longer be able to employ non-EEA nationals.  These requirements would no doubt hinder companies from recruiting talent from around the world.  If however you have £1 million or more to invest in the UK, then the visa process can prove to be far less stringent and the crux of the application does come down to the amount of money you have.  There is also no English language requirement and accelerated routes for settlements for Tier 1 Investors.  If you invest £5 million then you can apply to settle in the UK after three years and likewise if you invest £10 million then you can apply to settle in two years.  Some Tier 1 Entrepreneur applicants will also be eligible to apply for accelerated settlement of three years if they have created at least 10 new full time jobs for resident workers or their business has generated an income from business activity of at least £5 million.  This is a route for those wanting to set up a business in the UK and has access to not less than £50,000 or £200,000 investment funds.

4) Are There Industries Or Trades Where The Process Is Actually Straightforward?

Employers who recruit a non-EEA or Swiss national to fill a vacancy that is on the Tier 2 Shortage Occupation List will not need to demonstrate that a resident labour market test has been carried out i.e. advertising the vacancy for 28 days and documenting the recruitment process as per Home Office guidelines to confirm that there are no suitable resident workers for the role.  Obviously, if there are suitable resident workers who apply for the post then the employer must offer the position to the resident worker instead.  Removing this requirement makes the process more straight forward and certain.  The Shortage Occupation List is published by the Migration Advisory Committee which regularly reviews the list to identify what occupations the UK is in shortage.  At present, engineers are in short supply, particularly in the oil and gas, aerospace, waste management, and civil nuclear industries.  In the railway industry managers and designers in demand and feature on the List.  In the medical field the List includes radiographers, neonatal nurses and anaesthetists to name just a few.

5) In The Post 9/11 Age, We Have Seen A Far Tougher Stance On Immigration.  Has This Been Noticeable In Your Jurisdiction?

Warnings of further terrorist attacks are still high on the public agenda.  Applications for visa, settlement and citizenship request that Applicants disclose whether they have had any involvement with terrorism.  The UKVI e-Borders programme will collect and analyse passenger and crew data for journeys to and from the UK ahead of travel.  The Biometric Residence Permit enables the UKVI to perform reliable checks on foreign nationals against the immigration database and criminal and counter-terrorism records before deciding if someone should be permitted to stay in the UK.  In airports, strict regulations exist about what can be carried in hand luggage and checked-in baggage.  Since 2010, there are also metal detector/ body image scanners in some airports revealing dangerous items beneath clothing or on the body.  New biometric passports containing chips with information about the holder’s face that can be used to identify the individual have since been introduced.  Harsher civil penalties have been introduced on 16 May 2014 to double the maximum penalty for employers who employ an illegal worker to £20,000 putting the onus on employers to assist in creating a hostile environment to those without regular status in the UK.  The Home Secretary is proposing a change to the Government’s Immigration Bill to strip naturalised British terror suspects of their citizenship even if it leaves them stateless.

6) Will The Potential Improvement Of The Global Economy See A Relaxation Of Immigration Law?

In 2013, a 24-hour “super priority” visa service was introduced to Indian business travellers traveling to the UK.  The aim was to make it easier for business visitors frequently travelling from India to the UK and to encourage trade and business between the two countries.  Towards the end of 2013, the Home Office made changes to the Intra-Company Transfer (ICT) visa system to enable employees to extend their stay without having to take an English language test.  Global organisations will also be permitted to bring their own auditors on a business visitor visa, making it easier for them to complete international audits.  An improvement of the global economy has seen some signs of relaxation of the immigration rules but there is still far to go with the Tier 2 Points based system being far more stringent than its predecessor, the work permit scheme.

7) Despite Signing Up To The Freedom Of Movement Agreement Within The EU, Switzerland Has Recently Voted To Introduce Immigration Quotas Within The Country.  What Does This Mean For Multinational Companies Based In Switzerland?

The implications for multinational companies based in Switzerland will become clearer by the end of June 2014 when it is expected that the Federal Council will have prepared its proposal for the implementation of the initiative and this will also form the basis for negotiations with the EU.  The Federal Council intends to draft a law by the end of 2014.

It had been expected that Switzerland would retain quotas for migrants coming from the EU’s now member, Croatia, on 1 July 2014 and this would then have led to the suspension of other accords by the EU as treaties governing relations between the two sides contain a guillotine clause that invalidates the entire package if one of component is terminated.  It is an indication that the Swiss authorities are anxious to protect its relationship with the EU that despite the passing of the Initiative quotas for migrants coming from Croatia will be removed.  Whilst the Initiative has caused significant uncertainty for those companies that employ non-Swiss staff it is important to note that the current legal situation has not changed and accordingly Swiss employers can continue to hire EU nationals under the same system which was in force once before the initiative was adopted.

8) Is The Recent US Proposal To Relax Immigration Rules To Support Specialists And Their Families The Way Forward In The Immigration Debate?

Top U.S. business leaders including Mark Zuckerberg, Bill Gates, and Marissa Mayer all support immigration reform legislation that would provide a more robust path for highly skilled workers.  The immigration debate has entered a critical phase in Washington.  Business advocates believe that if Congress does not act before leaving Washington for an annual August recess, there will be no chance of passing immigration legislation this midterm election year, and likely not until a new president has taken office in 2017.  Meaningful reform would create millions of jobs, reduce the deficit, and allow for innovation to keep the U.S. globally competitive.  Relaxing immigration rules will indeed drive economic growth in the United States but immigration politics may continue to interfere in bringing about the immigration policies that are needed by businesses in all sectors of the economy.

9) As A Result Of Globalisation, Many Clients Are Looking For Law Firms Who Can Deliver An International Service.  How Have Client Expectations Of Lawyers’ Abilities And Expertise Changed Over The Years?

Clients are becoming increasingly more global and at the same time expect their lawyers to have the knowledge and expertise to be able to advise on immigration laws covering different jurisdictions.  Due to globalisation, employees are more mobile than ever as their employers attempt to move the skills and talent they have around more effectively and efficiently in order for multinational organisations to remain ever more competitive.  Immigration lawyers are therefore required to assist in making applications in the timeliest fashion and to provide advice to make innovative immigration solutions.

10) What Are The Main Challenges Facing Clients Who Are Trying To Move Employees Into Your Country?

For multinational organisations, one of the biggest challenges facing our clients is trying to move their employees to fill skills and talent gaps in the UK to find that they are unable to do so because their employee has performed the length of service required by the Home office.  Employees are required to have worked for an employer for at least 12 months if they intend to transfer to a UK branch of a multinational organisation for up to or more than 12 months.  This can prove extremely frustrating for an organisation needing to move employees around to assist with an urgent assignment or project work since the Tier 2 Intra Company Transfer (ICT) route is designed to enable employers to move employees to a UK branch of organisations quickly and effectively.

11) What Specific Aspects Of Immigration Law Should An Organisation Scrutinise When Considering Whether Or Not To Open Up An Office In That Jurisdiction?

In deciding whether to open an office in the UK, the company should look at how easy it is to set up the actual business in the UK in the first place and whether the resident market contain the skills and talent that they need.  For example, the UK has the Sole Representative visa available which allows for an established overseas entity intending to send a non UK/EEA national to establish and operate a wholly-owned subsidiary or branch in the UK.  For Sponsors, the UK also requires that a Sponsor licence is in place before migrant workers can be transferred to the UK entity.  Therefore, it would be necessary to look at the requirements of obtaining a sponsor licence in the first place.  If the skills are lacking within the resident market, the company should look at what occupations and skills the UK welcome and the various visa options available.  They should consider how easy it is to attain the requirements of the intended visa options and their respective costs, whether visas can be fast tracked if necessary and the availability of the length of visas and possibility of extensions.

12) What Are The Biggest Challenges Facing The Immigration Community Over The Next Five Years?

One of the biggest challenges over the next five years and beyond is the changing demographics of the UK.  Peoples’ increasing life expectancy, coupled with a decline in fertility will make it more difficult to sustain the UK economy.  A shortage of working-age population will put a huge financial strain on the UK economy.  In order to solve this problem, it may be necessary to increase the number of working age migrants into the UK which will hopefully ease the burden.  However, the UK will therefore start changing their immigration policies in order to attract such talent; the government would obviously have a delicate balancing act to perform in order to attract skilled migrant workers but also face pressure not to relax rules to the extent that they lose control of immigration.

13) In An Ideal World What Would You Like To See Implemented Or Changed?

In order to combat the challenges mentioned in response to question 15, it would be necessary to introduce rules which reflect the needs of employers, making it easier for UK companies to recruit overseas talent.  In addition, there needs to be stability.  The government needs to be more responsive to employer and migrant needs.  For example, rules should be amended to make it easier for elderly dependents into the UK as otherwise migrant workers will not want to settle in the UK and leave the UK with the skills and experience they have acquired.  This is particularly important because some communities see it an absolute requirement to support their elderly parents in their old age.  In order to attract the best to work in the UK and contribute to the UK economy, the Home Office would need to consider immigration regulations and policies carefully.

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