This month has been a hectic time in the immigration sector and in our monthly legal update Flora Mewies of Ward Hadaway runs through the key points for you to be aware of.
Importance of obeying the Home Office’s record keeping requirements
Last week saw the judgment in the case of Raj and Knoll Limited v Secretary of State which, somewhat unusually, specifically referred to the role of recruitment businesses.
As background, before a migrant worker from outside the European Economic Area can be employed in the UK, a worker needs to be sponsored by their employer but, before they can be sponsored, the employer needs to conduct the ‘Resident Labour Market Test’ (RLMT). At its most basic, this requires the role to be advertised for at least 28 days by two different methods. The sponsor duties set out by the Home Office prescribe what evidence of the RLMT needs to be retained by the sponsor.
In this case, the sponsor had used a recruitment business to carry out the RLMT on its behalf and had only retained some, but not all, of the evidence required. As a result of breaches of the sponsor’s record keeping duties its sponsor licence was revoked. The immediate impact of this is that all sponsored workers can no longer be employed and have 60 days to either leave the UK or apply for a new visa with a new sponsor – a nightmare for clients and candidates alike.
There will be situations where you are the sponsor and employer of migrant workers and those workers are contracted to your clients and also, situations where you are not the sponsor or employer but carry out the RLMT on behalf of a client when locating a suitable candidate. Either way, you are responsible for conducting the RLMT correctly and retaining appropriate evidence of this. Crucially, where the vacancy is advertised on the internet, you will need to take and retain a screen shot from the website hosting the advert, on the day the vacancy is first advertised, which clearly shows:
- the name of the website; and
- the contents of the advert; and
- the date and the URL; and
- the closing date for applications.
Failing to comply with record keeping duties can lead to the sponsor licence being downgraded, suspended or revoked and could lead to clients bringing civil claims for damages against you. Either way, it’s going to cause serious harm to the client relationship.
Current status of EU workers in the UK post-‘Brexit’
Following the uncertainty caused by the EU referendum result, the Home Office has given clear guidance on the rights of EU Nationals living in the UK. Until Article 50 is triggered and the formal process of leaving the EU has begun the UK remains an EU Member State and will do so until negotiations have concluded.
The Home Office has stated that the government recognises the contribution made by EU and non-UK citizens who live in the UK and because of this it is expected that when the UK has left the EU the legal status of EU nationals living in the UK will be protected.
Whether they’re your employees or candidates you should be encouraging EU nationals working in the UK to take steps to preserve the immigration rights they currently enjoy:
- For those who have lived in the UK more than 5 years:
- EU nationals who have lived in the UK continuously and lawfully for at least 5 years have a permanent right to reside here and can apply for a permanent residence card to document this; and
- after a further year of lawful residence (a total of 6 years), an EU national can apply for British Citizenship.
- For those who have lived in the UK less than 5 years:
- there is currently no requirement to register for any documentation to enjoy free movement rights;
- non-EU family members of EU nationals must continue to apply for a family permit if they wish to enter the UK under EU law, and they do not have a residence card issued by a member state;
- extended family members of EU nationals must continue to apply for a registration certificate (if they are an EU national) or residence card (if they are a non-EU national) if they wish to reside in the UK;
- Irish nationals enjoy separate rights, under various pieces of legislation, which allow Irish nationals residing in the UK to be treated in the same way as British nationals in most circumstances. There is no change to this position; and
- Croatian nationals might continue to need to apply for a registration certificate to be allowed to work in the UK under the transitional arrangements that were put in place when Croatia joined the EU in 2013. The type of registration certificate that they might need will depend on whether they need permission to work in the UK, and what they will be doing.
Extension of illegal working offence
Last but by no means least, the provisions of the Immigration Act 2016 came in to force on 12 July 2016. The key change to be aware of is that the Act has extended the existing criminal offence of knowingly employing an illegal migrant to include a situation where the employer has “reasonable cause to believe” that the person in question is an illegal worker. Previously, this criminal offence caught those people who had “knowledge” that the person was working illegally and so the legislation has been widened to capture more offenders. The maximum period of imprisonment for this offence has been increased from two years to five years although it is more common to receive a fine for this offence rather than a prison sentence.
The guidance on how to carry out a right to work check has been updated in light of this.
The Act also introduced two new provisions and we do not yet know when they will come in to force:
- an immigration skills charge on employers who sponsor skilled workers from outside the EEA. This is expected to be introduced around April 2017 and set at £1000 per employee per year and a reduced rate of £364 for small or charitable organisations; and
- a requirement that public authorities ensure that public workers in customer facing roles speak fluent English.
Flora Mewies of Ward Hadaway provides immigration advice to recruiters and other organisations and can help with all of the issues discussed above.
