28/01/2020

Bevan Brittan LLP has a six strong national immigration law team based in its UK offices in London, Birmingham, Bristol and Leeds.  We provide a service to clients across the UK and internationally on all aspects of business immigration.  We are members of the Immigration Law Practitioners Association and regularly provide training, commentary and articles on immigration and related employment law issues.

 

Introduction

These are remarkable times for the UK and how it interacts with the global economy.  For the immigration law team at Bevan Brittan, we have never been busier, as we help clients adjust to a fast moving immigration framework.  And as we look ahead to 2020 and beyond, we will need to support our clients more than ever, as they grapple with fresh challenges.  First, with the UK transitioning out of the European Union, EU/EEA citizens living and working in the UK must ensure they have applied for settled status via the Home Office scheme before 31 December 2020 to retain the right to work in this country.  Secondly, as the Government looks to implement a ‘one size fits all’ points based system planned to commence in a year’s time, employers will need to quickly get to grips with and apply the new rules to ensure compliance but also to enable their organisations to readily access key foreign workers in order to maintain competitive edge.

So, whether it’s an international corporation investing in the UK; an NHS Trust recruiting foreign nurses; a university employing overseas academics; or a business looking for skilled or less skilled workers in retail, agriculture, finance, manufacturing or social care, immigration law affects all sectors of the UK economy and employers, large and small.

This Review considers some significant recent legislative and case law developments in the area of immigration law and how this will affect UK employers, and also looks ahead to key policy developments as the country gears up for Brexit….

Ashley Norman, partner and national head of immigration law, Bevan Brittan LLP, January 2020.

 

 

What’s been happening….?

Legislative changes in 2019

Start-up Visas

From 29 March 2019 the government replaced the Tier 1 Graduate Entrepreneur visa with the start-up visa. To follow this rote, individuals no longer need to be a graduate, nor do they need to have secured initial funding for their business venture. The new route allows a wider pool of individuals to apply to enter the UK as entrepreneurs and the scheme sits outside of the usual points based system.

To apply, individuals need endorsement by a business or higher education institution. This organisation must check that the business idea is innovative, viable and scalable. If the organisation is satisfied that these have been met then they can grant an endorsement certificate. However, once they do so, the organisation has a duty to keep in contact with the individual at six, 12 and 24 months and there is an obligation to share information with the Home Office.

If individuals are successful, they will be granted leave to remain for two years which cannot in itself be extended. However individuals may then seek another route to gain leave to remain.

 

Innovator Visas

The innovator visa was also introduced on 29 March 2019 with the aim of replacing the existing Tier 1 Entrepreneur route. This route is aimed at entrepreneurs with more experience than those who would apply under the start-up visa.

To apply, individuals also need an endorsement letter. Endorsement will be based on innovation, viability and scalability as for the start-up route, although scalability is more widely drafted for this route. To be successful in applying for this visa with a new business idea, the applicant will also need £50,000 in investment funds, whereas the requirements are different for an existing business idea.

Successful applicants will be granted leave to remain for three years and it is possible to apply for an extension. Furthermore, once an individual resides in the UK for three years, they can apply for settlement in the UK.

 

The Tier 1 (Exceptional Talent) Route

The exceptional talent visa is aimed at talented leaders and promising future leaders and was expanded at the start of 2019 to include architects after lobbying from the RIBA. Furthermore, in December, the government announced that the previous cap on 2,000 available visas was to be abolished, and there would be no limit to the number of people who could access the visa in a given year.

Applicants will need to apply for endorsement to an organisation related to their qualifying field which is a ‘designated competent body’. These bodies are: the Royal Society (for science and medicine), the Royal Academy of Engineering, the British Academy (for humanities), Tech Nation, and the Arts Council England. If the qualifying field is fashion, architecture or film and television, the Arts Council will pass on the application to the relevant body for review.

Successful applicants are granted leave to remain for five years and four months if applying from within the UK and five years if applying outside the UK.

Whilst the number of applicants for all three routes described above has been low (in comparison to the applicants under the previous Tier 1 system) the current UK Government does appear committed to retaining and developing these options in order to ensure that the UK is “open for business”.  Given the significant planned change to a universal points based system for all UK immigration occurring post 1 January 2021 organisations should watch out for any developments within these areas.

 

 

Case law updates

R. (on the application of Suny) v Secretary of State for the Home Department

[2019] EWCA Civ 1019

Judgment date: 19 June 2019

This case concerned the Home Office’s refusal of Mr Suny’s application for leave to remain and whether or not that decision was irrational. Mr Suny, a Bangladeshi migrant initially entered the UK in December 2007 on a student visa. He later applied to extend his leave to remain.

Mr Suny applied for further leave to remain on 12 August 2015, and paid a fee for Tier 2 Priority Service Application. He was expecting a decision within 10 working days but did not receive a response until almost 18 months later where his application was refused.

The application was made under Tier 2 (General) in the Points Based System. He provided a certificate of sponsorship with a job offer for a role which fell within the standard occupational classification. The job Mr Suny had been offered was as a sales accounts and business development manager at Zamir Telecom Ltd (an approved sponsor) and whilst he had a Master of Arts in Marketing and Innovation from Anglia Ruskin university, it appeared that Mr Suny lacked experience for the role.

When deciding Mr Suny’s case, the Home Office considered that there were various factors that made the job offer appear fictitious. The decision maker noted that Mr Suny was clearly not adequately experienced for the role and furthermore, the wording of the job advert was suspiciously close to the wording provided in the Code of Practice for Skilled Workers. The Home Office did not consider it probable or rational that the employer would seek to train Mr Suny up to the appropriate standard whilst the role clearly required him to train and supervise more junior members of staff.

An applicant under Tier 2 (General) will need to score 50 points as a minimum under paragraphs 76-79D of Appendix A of the Immigration Rules, subject partially to paragraph 77H. The Home Office relied on paragraph 77H(a) to refuse Mr Suny’s application on the basis that the job offer was not genuine, and both Mr Suny and the employer had failed to explain the apparently suspicious circumstances.

Although the Upper Tribunal had refused permission to apply for Judicial Review, Mr Suny successfully appealed and the case was heard by the Court of Appeal. At this stage, Mr Suny was finally successful. The Court found that although the circumstances raised some suspicion, they were not a sufficient basis for a refusal to grant leave and the decision was quashed.

 

R (on the application of Pathan) v Secretary of State for the Home Department

[2018] EWCA Civ 2103

Judgment date: 2 October 2018

Appeal hearing date: 12 December 2019

In October 2018, the Court of Appeal ruled that the decision of the Home Office not to grant leave to remain to two Tier 2 applicants (Mr Pathan and Mr Islam) was not irrational or procedurally unfair.

The applicants were both initially granted leave to enter the UK as Tier 4 students. Both subsequently applied for further leave to remain as migrant workers under Tier 2. Whilst their applications were pending, their employers’ sponsorship licences were revoked. The applicants were not informed of this revocation and eventually learned that their applications were refused and they were not granted leave to remain. The applicants lodged a judicial review application claiming that as a matter of procedural fairness, they were entitled to have been informed of the revocation of their sponsors’ licences so that they would be able to source alternative employment.

To support their argument, the applicants cited the case of Patel v Secretary of State for the Home Department, whereby a student was entitled to notice that his college’s sponsorship licence had been removed and that this was a matter of procedural fairness. However, this argument was not successful for this case as the Court of Appeal held that the principle did not apply for the case of a Tier 2 visa application. The reason for this was that for a Tier 4 student, the reason the visa was initially granted was to enable the individual to study a course to enable them to attain some sort of qualification. With a Tier 2 application, a visa is granted if an approved sponsor is in place and the organisation requires the skills of that individual. The court therefore found that if the employer was no longer an approved sponsor then the individual was in effectively no longer needed. The court noted that they would not offer a substantive judgment on whether or not this was a fair rationale, as the decision was primarily a political one and therefore was not within the court’s jurisdiction

In December 2019, the case was heard by the Supreme Court and a judgment is yet to be handed down.

 

What next for 2020 and beyond…?

EU Settled Status scheme

Although there have been conflicting – and changing - plans for the immigration status of EU nationals post Brexit, the government’s position is now clear. For those residing in the UK before 31 December 2020, applications can be made to the EU Settlement Scheme, whilst those arriving after the transition period is anticipated to end on 31 December 2020 will be subject to the new points based system the UK has indicated will be in place.

The EU Settlement Scheme has been in place since March 2019 and as of September 2019, over 1.5 million people had applied to the scheme.

The scheme allows any EU citizen residing in the UK before 31 December 2020 to apply for the right to remain in the UK indefinitely by submitting an application before 31 December 2021. Successful applicants will be granted either settled, or pre-settled status depending on whether they meet the residency and suitability requirements. To be granted settled status, the applicant will usually be required to have a continuous period of residence of at least five years. Those who have been in the UK for fewer years may be entitled to pre-settled status, which would granted for a period of five years to enable them to reside in the UK until they are eligible for settled status.

Once settled or pre-settled status has been granted, an individual may be able to work in the UK, use the NHS, study, access public funds such as benefits, bring family members and travel in and out of the UK.

For EU nationals who enter the UK after 31 December 2020, they will be subject to the new points based system that the UK is expected to implement (see below). Note if there is a no deal scenario at the end of the transition period (currently 31 December 2020) AND if delays arise as to the implementation of any new UK immigration system it may be that the current UK proposals for a European Temporary Leave to Remain (in the event of no deal) could be implemented on 1 January 2021 in which case there would be a period of three months for which individuals may remain in the UK once coming into the UK. After this point, they may apply for Temporary Leave to Remain, a scheme which is expected to commence when the UK leaves the EU on exit day. Permission will be granted for 36 months to successful applicants and there will be an opportunity to apply for further leave via the new points based system. Definitely an area to keep a close eye on as the transition period ends.

 

The new Points Based System

The overhaul of the UK immigration system was arguably one of the biggest cards in the Leave campaign’s hand leading up to the EU referendum. Slogans such as ‘take back control’ implicitly referenced an end to freedom of movement and tighter controls on entry into the UK. Now that Brexit has been scheduled for 31 January 2020, Boris Johnson has set out his plans more explicitly by announcing the introduction of an Australian style points-based system.

The idea behind the points based system is that those who are more highly skilled are awarded more points, and EU and non-EU citizens are treated equally when it comes to the application of the points test.

The pledges made in the conservative party manifesto state that the new system will be ‘firmer and fairer’ and focuses on attracting more highly skilled workers rather than lower skilled workers. This system looks initially beneficial for the UK, with net migration set to fall (in line as per the government’s targets) and the concentration of highly skilled workers increasing. However, there are concerns that these proposals may lead to a shortage of lower skilled workers, which the UK still heavily relies on.

There are also substantial differences between an ‘Australian style’ points based system and proposals actually being discussed by the government. The main difference being that the majority of people coming into the UK will need a clear job offer. Whilst the Australian system focusses on the skills and education that people have, this system places a greater reliance on an employer’s ability to judge this.

The new system will mean that EU migrants will have to wait five years before being able to access benefits and will also have to pay the immigration health surcharge which currently stands at £400 a year.

At the end of last year, the Migration Advisory Committee issued a consultation and called for evidence from interested parties to enable it to carry out an in depth analysis of potential future salary thresholds for the new system. The responses are being analysed at present and the Committee will issue its recommendation on the appropriate salary thresholds.

The Government’s focus on “high skilled” immigration means that there may well be certain sectors like the Technology sector or Scientific Research that may receive more favourable treatment in terms of any new visa rules.  For example, fast track options for international scientists as well as adding more specialist technology roles to existing shortage occupation lists have been mentioned as possible ways forward. 

Unfortunately, this is also likely to lead to more restrictions and curbs on “low skilled” roles.  Under any new points based system it may therefore be harder for organisations to recruit to and potentially retain individuals in roles which do not meet minimum salary thresholds.  Organisations will need to monitor closely what, if any, transitional or short term solutions are considered by the Government in 2020 to address these issues and take into account developments in this area when setting out any future plans around workforce recruitment and retention.  

 

Healthcare workers visa

The NHS will have one of the toughest staffing issues once the UK leaves the EU. As of March 2019, 153,344 members of staff across the NHS reported having non-British nationality. This group makes up around 13% of all staff in the NHS and over 65,000 members of staff reported being EU nationals.

The highest portion of foreign workers is found in nursing. In the latest government figures, 17% of nurses across the country were from overseas with 6% of nurses identifying as EU nationals. Whilst these figures show that the majority of workers in the NHS are British, the portion of foreign workers, particularly EU workers, represents a significant minority that could be affected by tighter immigration controls.

With the end of freedom of movement now more firmly in sight with the UK seeking to leave the EU, there will undoubtedly be concerns as to whether or not the NHS will be able to meet its staffing requirements.

As part of the post-BREXIT immigration reform, the government has been proposing an Australian style points system to enable a tighter grasp on immigration once the UK is independent of the EU. Although the government is offering the Settled Status scheme for those already in the UK, from 2021 those arriving to the UK from abroad, EU or non-EU will be subject to the new system.

To address concerns that the NHS will suffer, the government has proposed a fast-track scheme for NHS staff. This visa offers half-priced visa fees of £465 with preferential treatment in the application process and a shorter response time of two weeks.

However there is still no word from the government on the possibility of relaxing the health surcharge for prospective NHS employees. The surcharge is currently £400 per year based on the amount of leave granted on the visa and some have argued that it would be unfair to impose this kind of fee for use of the NHS onto those who actually run it.

https://researchbriefings.files.parliament.uk/documents/CBP-7783/CBP-7783.pdf

 

 

Whilst you’re here…

…you may be interested in some of the services our immigration law team provide to our clients on a regular basis – we have listed some of the more popular ones below.  If any of these might be of interest, please don’t hesitate to get in touch with a member of the team – full contact details are here.

  • Guidance to employers and EEA staff on applying for settled status
  • UKVI mock audits
  • Advice on all aspects of ‘right to work’ checks and documentation
  • Immigration training for HR and recruitment teams
  • Advice on sponsorship licenses
  • Handling all types of inbound immigration issues on behalf of employers
  • Handling outbound immigration issues on behalf of employers via our international legal network of contacts

 

 

The contents of this Review are not intended to amount to legal advice which any party is entitled to or should rely on.  If any party reading this Review requires specific legal advice on any of the comments made or topics covered, it should seek relevant legal advice from ourselves or another adviser.