Overseas Criminal Record Certificates Extended to Tier 2

IN THIS SECTION

  • From 6 April 2017, Tier 2 skilled worker applicants within education and healthcare required to provide overseas Criminal Record Certificate 
  • New duty placed on education and healthcare sector employers to inform applicants of requirement 

Rules for Overseas Criminal Record Certificates

Currently, individuals applying for entry clearance under the following routes are required to provide an overseas criminal record certificate:

To comply with UK immigration rules, applicants must provide a criminal record certificate for any country (excluding the UK) where they have resided continuously or cumulatively for 12 months or more, in the 10 years prior to application.

Duty extended to Tier 2 applicants for education, health and social care jobs

From 6 April 2017, the criminal record certificate requirement has been extended to Tier 2 skilled worker applicants in the education, health and social care sectors. When applying for entry clearance, the prospective employee must present a criminal record certificate from any country they have lived in for 12 months or more in the past 10 years.

The requirement also applies to applicants’ adult (over 18 years old) dependants.

The requirement is mandatory to applicants applying under the following Standard Occupational Classification (SOC) codes:

1181 – Health services and public health managers and directors
1184 – Social services managers and directors
2217 – Medical radiographers
2218 – Podiatrists
2219 – Health professionals not elsewhere classified
2221 – Physiotherapists
2222 – Occupational therapists
2211 – Medical practitioners
2212 – Psychologists
2213 – Pharmacists
2214 – Ophthalmic opticians
2215 – Dental practitioners
2223 – Speech and language therapists
2229 – Therapy professionals not elsewhere classified
2231 – Nurses
2232 – Midwives
2312 – Further education teaching professionals
2314 – Secondary education teaching professionals
2315 – Primary and nursery education teaching professionals
2316 – Special needs education teaching professionals
2317 – Senior professionals of educational establishments
2318 – Education advisers and school inspectors
2319 – Teaching and other educational professionals not elsewhere classified
2442 – Social workers
2443 – Probation officers
2449 – Welfare professionals not elsewhere classified

A new duty for education and health sector employers

Employers within the education and health and social care sectors are now under a statutory duty to inform Tier 2 skilled worker applicants of the need to source and submit overseas criminal record certificates.

Failure to comply could result in a refused visa, creating avoidable issues around staffing levels and requiring resources to resolve.

What is the timeline for implementation?

The requirement applies to all prospective employees in an occupation defined by the relevant Standard Occupational Classification (SOC) code (see above):

  • who have been assigned a certificate of sponsorship on or after January 2017; and
  • who will be applying for entry clearance after 6 April 2017.

The extended requirement does not affect visa applications made before April 2017.

When a certificate of sponsorship is issued, the employer must inform the Tier 2 visa applicant whether they will be required to provide an overseas criminal record certificate.

What if applicants are unable to obtain a criminal record certificate? 

From an employers’ perspective, where a prospective employee is unable to produce the required documentation, alternative supporting evidence should be requested such as references, before an offer of employment is made.

For applicants unable to source an overseas criminal record certificate covering the full period required by the visa application, a letter should be submitted as a supporting document to the application.

In the letter, the applicant should detail their efforts to secure a certificate and explain why they have been unable to meet the requirement. This may be due to a country refusing to provide the requested documentation to non-citizens, or in some instances, countries do not operate a criminal record system.

UKVI will make a decision on the application, looking at what attempts have been made to meet the requirement in the context of circumstances within the relevant country. UKVI may decide in favour of the applicant by waiving the requirement, or they may decide the applicant has failed to meet the requirement, and in doing so refuse the visa.

What do employers need to do?

The new requirement is an additional compliance burden on education and health sector employers, and should be accounted for as part of your pre-employment checks.

While the change in April applies to health and education sectors only, the Home Office has stated the requirement remains best practice. It remains to be seen how broadly the Tier 2 requirement could be extended to cover wider market sectors.

DavidsonMorris are experienced immigration compliance advisers to employers in the education and healthcare sectors. If you have any queries about the new requirement, or immigration compliance in general, please get in touch.

 

Author

Founder and Managing Director Anne Morris is a fully qualified solicitor and trusted adviser to large corporates through to SMEs, providing strategic immigration and global mobility advice to support employers with UK operations to meet their workforce needs through corporate immigration.

She is a recognised by Legal 500 and Chambers as a legal expert and delivers Board-level advice on business migration and compliance risk management as well as overseeing the firm’s development of new client propositions and delivery of cost and time efficient processing of applications.

Anne is an active public speaker, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals

About DavidsonMorris

As employer solutions lawyers, DavidsonMorris offers a complete and cost-effective capability to meet employers’ needs across UK immigration and employment law, HR and global mobility.

Led by Anne Morris, one of the UK’s preeminent immigration lawyers, and with rankings in The Legal 500 and Chambers & Partners, we’re a multi-disciplinary team helping organisations to meet their people objectives, while reducing legal risk and nurturing workforce relations.

Legal Disclaimer

The matters contained in this article are intended to be for general information purposes only. This article does not constitute legal advice, nor is it a complete or authoritative statement of the law, and should not be treated as such. Whilst every effort is made to ensure that the information is correct at the time of writing, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.

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