Applying for indefinite leave to remain (ILR) is a landmark point in the life of any migrant to the UK. After going through the process of securing leave in the first place, accruing enough continuous time in the UK to gain ILR (typically five years), and then going through the lengthy and costly process of applying, receiving a letter of refusal can be deeply upsetting. Not least because much rests on securing ILR, both for the main applicant and their family members, ILR represents the penultimate step in the process of securing UK citizenship, offering holders considerable certainty and security, and means that they will no longer need to be subject to immigration rules. For these reasons, it is extremely useful to understand why ILR applications are most commonly refused, meaning that you can ensure that your application does not fall into the same pitfalls.
Thankfully, of all the reasons for refusal, this is perhaps the easiest one to avoid. It is important to emphasise that UKVI will not necessarily reject an application due to a small oversight or missing document, but every error potentially increases the chance of refusal. Ultimately, UKVI case officers will make the decision on your ILR application based on the information given to them, so if you have not provided sufficient evidence that you have been in the UK continuously (you must not have been outside of the UK for more than 180 days in any one year period), or if the documents provided incorrectly show you do not meet the minimum income requirement, it stands to reason that a refusal decision is possible. Bear in mind the income requirements vary depending on your circumstances, and UKVI may carry out a pro-rata calculation of your actual income.
The best way to avoid falling into this trap is to read the guidance published by the UK Visas and Immigration (e.g. the guidance on how continuous residence is calculated), ensure that every question answered is complete and correct, and every document requested is provided and meets the standards required (e.g. in terms of translation, format, and whether it is original or a copy). If you don’t have time to do this fully, we recommend that you do no risk submitting your application. Ask an immigration Solicitor to check your application for you; not only will they review your application and documents, but they will also highlight any possible areas which may lead to questions or even refusal, and how these can be resolved (e.g. they may write a covering letter to accompany your application).
It may be that a minor technicality that you have not considered or read means you are not able to gain ILR. You may have spent just one more day over the 180 days allowed in a given one year period, your tax records may show your income is not sufficient, or you may have spent time in prison for a criminal conviction and not enough time has passed since the end of the sentence (one of the grounds for refusal states a person will be refused for ILR if they have “been convicted of an offence for which they have been sentenced to a period of imprisonment of less than 12 months unless a period of 5 years has passed since the end of the sentence”).
There are several grounds for refusal for permission to stay, as defined in the Home Office’s immigration rules part 9. We recommend reading these carefully to ensure that you do not fall foul of any. For example, one of these grounds for refusal relates to making false representations in your application. For this reason, it is vital that you provide honest answers and information in your ILR application, as any attempt to mislead UKVI will lead to immediate refusal. If you are concerned that one or more of the reasons for refusal applies to you, speak to an immigration Solicitor before you apply. They will be able to outline a strategy to mitigate these concerns where this is possible.
Some applicants are surprised and often upset when UKVI check their tax records and find a discrepancy between their taxable income and their stated income level. This occurs because according to Paragraph 9.3.1 of the grounds for refusal, “An application for entry clearance, permission to enter or permission to stay must be refused where the applicant’s presence in the UK is not conducive to the public good because of their conduct, character, associations or other reasons (including convictions which do not fall within the criminality grounds)”. And in past cases, there have been situations where the Home Office has used tax and income discrepancies as a basis for refusal, as they argue this puts the conduct of the applicant into question. The Court of Appeal has now made it clear that UKVI cannot issue an immediate refusal for this reason and must inform the applicant of the finding and to give them an opportunity to provide new information, and they must consider whether there was a genuine intent to mislead. Nevertheless, it is always advisable from the outset to ensure that the figures you provide in terms of income match those recorded by HMRC.
There are many possible reasons that an application for ILR can be refused. UKVI case officers are supposed to use their discretion where possible and provide the applicant with the chance to provide new evidence where it is needed. That said, by taking the time to understand the grounds for refusal, the eligibility rules, checking your application thoroughly, and providing the correct documents, you will boost your chances of success first time. Alternatively, if you do not have the time needed to prepare a thorough application, or if you just want to give yourself the very best chance of a positive outcome, do consider engaging an immigration Solicitor.
To find out more about the ILR application process or how to challenge a refusal, please phone us on 0121 777 7715 to make an appointment with one of our Immigration Solicitors based in Birmingham and London.
Please note that this article does not constitute legal advice.
There is absolutely no doubt that recruiting overseas staff for hospitality roles in the UK has become more difficult as a result of Brexit and COVID-19. According to the latest BBC news, the UK’s hospitality industry is experiencing a rapidly rising worker shortage, with vacancies currently at their highest ever levels. With the ending of free movement between the UK and the European Union from the 1st January 2021, the ability for hotels, restaurants, and other hospitality businesses to hire lower-skilled staff Home Office has Europe has been severely curtailed. As a result, we are now working with many businesses across the UK to help them find new and creative ways to recruit the staff they need; an especially pressing concern given the impact of the COVID-19 and the current ‘pingdemic’. If you are desperately trying to find enough hospitality staff domestically, what are your options for sourcing recruits from overseas?
There is a widespread perception that the Skilled Worker visa (which replaced the Tier 2 General visa) is for highly skilled sponsorship only, but this is not the case. This is because the Home Office lowered the skills threshold in anticipation of Brexit from degree level to college level (i.e. A-level). As a result, the list of roles for which overseas nationals can be sponsored to work in the UK grew considerably to include a wide range of senior hospitality positions (admittedly at the more senior end of the spectrum), including chefs, floor managers, licensees, and publicans. The full list of eligible occupations under the Skilled Worker route is available on the Home Office website. We highly recommend looking at this list to see whether at least some of the roles you are currently struggling to fill are included. It is important to note that the Skilled Worker visa route does impose a minimum salary requirement of £10.10 per hour (this is £25,800 for those on a full-time salary). That said, it is possible for a lower salary to be paid in certain circumstances; the Home Office rules state, “You can be paid between 70% and 90% of the usual going rate for your job if your salary is at least £20,480 per year and you meet one of the following criteria: your job is in a shortage occupation, you’re under 26, studying or a recent graduate, or in professional training”.
If the Skilled Worker visa may solve at least some of your recruitment needs, you will need to secure a sponsorship licence in order to sponsor an overseas candidate.
Many businesses assume that if they find a suitable candidate who is from the EEA/EU and is currently living in the UK and they have not applied for EU Settled Status, it is too late for them to apply, and hence they cannot hire them. In some cases, it may be possible for them to apply even though the EU Settlement Scheme closed for applications on 30th June 2021. The Home Office guidance for caseworkers tells them, “In line with the Citizens’ Rights Agreements, there remains scope, indefinitely, for a person eligible for status under the EU Settlement Scheme to make a late application to the scheme where, in light of all the circumstances and reasons, there are reasonable grounds for their failure to meet the deadline applicable to them”. Examples of reasonable grounds for a late application to the EUSS include:
Remember, in order to make a late application under the EUSS, candidates must have been living in the UK before the end of 2021. While a late application is not a possibility for many, it may be for some suitable candidates.
There are several other immigration routes that may enable UK hospitality businesses to find suitable overseas candidates, as follows:
We are not suggesting that the options outlined above are sufficient to resolve the shortage of hospitality workers in the UK entirely, but they may offer a partial mitigation. If you would like to discuss any of the immigration routes outlined above as a means of resolving your hospitality worker crunch, speak to an immigration Solicitor who will be able to explain more.
To find out more about the EUSS or hiring overseas workers, please phone us on 0121 777 7715 to make an appointment with one of our Immigration Solicitors based in Birmingham and London.
Please note that this article does not constitute legal advice.
It is easy to forget how important supporting documents are when applying for a UK Spouse Visa. But many applications are refused because the correct documents were not included, ordered incorrectly, or contained the wrong information. With the fee for a UK Spouse Visa now at over £1,500, few can afford to make such an error.
The documents you will need to include with your application will depend on your circumstances. This is why investing in advice from an experienced Immigration Solicitor is well worth it. They will take the time to understand you and your spouse’s situation and tailor your application to ensure its strengths are highlighted and any weaknesses explained.
Your included documents are designed to support the fact that you and your spouse meet the eligibility criteria for a UK Sponsor Licence –
UK spouse requirements:
You must be:
You must be:
Both of you need to include your current and previously held passports. If the sponsoring spouse has Indefinite Leave to Remain, it will be shown as a vignette in their passport. Settled Status and Pre-Settled Status can be checked online.
It is often the most obvious documents that are forgotten. Your marriage certificate is proof that your marriage is lawful. If your marriage certificate is not in English, you need to provide a translation.
A marriage certificate is not enough to prove your relationship is genuine – after all, anyone can get married for convenience. To increase your chances of a successful application, you should include documents such as emails, messages, and letters that you have sent each other, statements from family and friends, photos of you spending time together, copies of joint bank statements, and proof that you have been living together. There is no set formula for proving your relationship is genuine so include as much information as you can.
The sponsoring spouse must be able to prove that they meet the Minimum Income Requirement of £18,600 (this increases if dependent children are included in your application). Therefore, you need to include 12 months’ worth of payslips, bank statements, your employment contract, and a letter from your employer confirming your employment status.
If you are not from one of the countries exempt from providing proof you can speak English (these are nations such as New Zealand, America, and Canada where English is the main language) you will need to provide evidence that you have sat an approved English language test.
For your results to be accepted, your test must:
Those applying for a UK Spouse Visa only need to take an English language speaking and listening test.
The person assessing your application must be satisfied that you and your spouse have adequate accommodation. Adequate means that the property is free from overcrowding and does not contravene public health regulations.
You can live with others; however, you must have space (even if it is just one bedroom) of your own.
Proof of accommodation can include a letter from your landlord, housing association, mortgage lender, or family or friend with whom you are living with. The letter must confirm how many people are living at the property and that it is not overcrowded.
To find out more about applying for a UK Spouse Visa, please phone us on 0121 777 7715 to make an appointment with one of our Immigration Solicitors based in Birmingham and London.
In March 2021, the British Government published its New Plan for Immigration (the Plan) and called for consultation (which is now closed). According to the Government, the Plans objectives are to:
Although the objectives concern asylum seekers, there are also proposed changes to nationality law. These are contained in Chapter Three of the Plan. Below is a breakdown of the Government’s proposals.
Although a child of a British Citizen could pass on their British Citizenship to their children, mothers were prevented from doing so until 1 January 1983. And until 1 July 2006, children born to British unmarried men could not acquire British nationality through their father. Provisions to rectify this were introduced for British citizens; however, they were not applied to children of British Overseas Territories Citizens (BOTC). Under the Plan, eligible children of BOTCs will be able to get British Citizenship and BOTC.
Furthermore, children entitled to British Citizenship through their biological father (while their mother was married to someone else at the time of their birth) will be able to register for British Citizenship, rather than rely on a discretionary immigration route. In addition, a discretionary adult registration route will be introduced allowing the Home Secretary to grant British Citizenship where there are compelling circumstances. The residence requirements may also be waived in cases where an unfair outcome would be achieved if discretion was not allowed (more on this below)
Finally, although genuinely stateless children will be able to acquire British Citizenship if they are born in the UK, have lived here for five years, and have never had another nationality, children of parents that fail to register their child in their own (the parents) nationality when they are legally able to do so will not be given British Citizenship. This proposal is concerning as it involves a child suffering the consequences of a parental or in the case where the child has been taken into care, a local authority’s decision. The consequences of statelessness are severe ; therefore, this proposed change is particularly harsh.
When the Immigration Act 1971 (the 1971 Act) came into force, most of the Windrush generation did not qualify for the right of abode. However, if they lived in the UK on 1 January 1973, they would have acquired Indefinite Leave to Remain (ILR).
Not only were no documents or records concerning members of the Windrush generation touched by the change kept by the Home Office, the people affected were not given anything to show that they had been granted ILR. Many who went abroad were subsequently denied entry into the UK upon return.
Following the exposure of the Windrush scandal in 2018, those who had been forced to live abroad due to being denied re-entry were allowed to apply to come back to Britain as a Returned Resident and claim ILR immediately. However, they were not granted immediate entitlement to British Citizenship.
Because there is a requirement under the British Nationality Act 1981 that anyone applying for British Citizenship must have been in the UK on the date that falls exactly five years before their application was made, members of the Windrush generation who were effectively exiled now have to wait for five years upon returning to the UK for citizenship.
The Plan proposes that:
“We will also introduce further flexibility to waive residence requirements for naturalisation in exceptional cases. This will help individuals, including members of the Windrush Generation (who were not able to meet the residence requirements to qualify for British Citizenship through no fault of their own), to obtain British citizenship more quickly.”
This change will right an historic injustice for a generation of people who were forced to leave their home country and then, upon return, have thus far been denied the right to citizenship.
These proposed changes to British nationality law will affect many people. If any of the above situations apply to you or a member of your family, please seek expert legal advice immediately.
If you have questions about any of the points mentioned above, please phone our office on 0121 777 7715 to make an appointment with one of our Immigration Solicitors based in Birmingham and London.
Some of the best Immigration Solicitors in the UK, along with Open Rights Group (ORG) and the3million, which represents EU citizens living in the UK have taken a challenge to the ‘immigration exemption’ in the Data Protection Act 2018 to the Court of Appeal.
In October 2019, the High Court ruled that the ‘immigration exemption’ was lawful. In February 2021, the Court of Appeal hearing took place, and we are currently awaiting the decision.
Aside from Immigration Lawyers and Home Office officials, few people have heard of the ‘immigration exemption’. So why is it subject to a court challenge?
Article 15 of the GDPR outlines the right of data subjects to access their personal information. It states:
“The data subject shall have the right to obtain from the controller confirmation as to whether or not personal data concerning him or her are being processed, and, where that is the case, access to the personal data”.
When someone requests access to their personal data that is held by a public or private body or
a charity, it is known as a Subject Access Request (SAR).
The ‘immigration exemption’ which is contained in schedule 2 of the Data Protection Act 2018, allows the Home Office and other organisations involved in ‘immigration control’ to refuse SARs if providing access to personal data might “prejudice the maintenance of effective immigration control”.
The ORG and the3million brought a Judicial Review claiming that the ‘immigration exemption’ was too broad. They argued that the exemption is unlawful because it amounts to unnecessary and disproportionate interference with fundamental data protection rights.
The High Court rejected the Claimants’ arguments. Mr Justice Supperstone concluded the immigration exemption was a matter of important public interest and pursued a legitimate aim. The issue before the Court was what was legally required where, as with the ‘immigration exemption’, the legislation did not itself interfere with people’s data rights, but instead made abstract provision for an exemption which data controllers could rely on if the circumstances of a particular matter meant it was justifiable to do so. The Court held that the immigration exemption satisfied the requirements for a measure to be “in accordance with law”, given the fact it was non-ambiguous.
Following the High Court decision, the ORG and the3million said
“We are disappointed by the judgement in the High Court today and we have applied for permission to appeal.
“We still believe that the immigration exemption in the Data Protection Act 2018 as it stands breaches fundamental rights. It is a blunt instrument, poorly defined and ripe for abuse. Access to data is key for an accountable system, that corrects errors in an immigration system that occur at an alarming rate. The importance of this can’t be underestimated. Millions of EU citizens must navigate the Home Office application process to stay in the UK. This exemption removes that ability to correct errors, which could prove decisive in immigration decisions whether to allow a person to remain in the United Kingdom.
“As a result of this litigation we know the exemption is being used and is being used often. Open Rights Group and the3million will continue the fight against the immigration exemption, seeking an immigration system and data protection framework that respects the rights of everyone.”
The ‘immigration exemption’ has been a contentious provision ever since it was inserted into the Data Protection Act 2018, especially given that it was not present in the 1998 version of the Act. It was noted in the judgment that of around 18,000 SAR’ received in the first year following the coming into force of the Data Protection Act 2018, the ‘immigration exemption’ was depended on to avoid disclosure in 59% of cases. Therefore, a decision to rule it unlawful could result in many immigration decisions needing to be reviewed and possible grounds for thousands of pounds in compensation claims.
We will update you as soon as the Court of Appeal decision becomes available.
Based in Birmingham and London, UK Migration Lawyers is one of the best Immigration Solicitors in Britain. If you have any concerns or questions regarding the ‘immigration exemption’ in relation to data protection, please phone our office on 0121 777 7715.
Two weeks after the Hong Kong BNO Visa opened, The Times reported that over 5,000 applications have already been received. The immigration route for British Overseas Nationals (BNO) offers up to 5.4 million Hongkongers a five-year visa and a path to full British citizenship. It is predicted that around 300,000 people will apply for the visa within the next five years.
Lord Patten of Barnes, the last British Governor of Hong Kong, commented:
“One of the most positive things that any government has done has been to offer a route to safety and citizenship in Britain to those for whom we have in the past borne some responsibility. I think the home secretary and the foreign secretary have been admirably swift.
“The fact that the number is already 5,000 gives some indication of the concern felt by people in Hong Kong that their freedoms have been taken away and this comes of course at a time when the trial has opened for a number of those who have been regarded as moderate founders of democracy campaigns in Hong Kong. I’m sure that many of the talented people who come from Hong Kong will be made very welcome here and will make a huge contribution to our country.”
Below is a quick guide to applying for a Hong Kong BNO Visa. Our Immigration Solicitors in London and Birmingham can provide expert advice on making an application, giving you the best chance of having you and your family members’ visas approved.
British Overseas Territories citizens from Hong Kong who did not register as British nationals (overseas) and had no other nationality or citizenship on 30 June 1997 became British overseas citizens on 1 July 1997.
If you are over the age of 24, you are likely to have BNO status.
You can apply for a Hong Kong BNO Visa from outside the country or within the UK (almost half of the current applicants are already in Britain, having been granted leave via another immigration route).
If you are applying from outside the UK, your permanent home must be in Hong Kong. If you are making an in-country application, your permanent home must be in the UK, Hong Kong, the Channel Islands, or the Isle of Man. You will need to include up to three documents to prove your address: for example, a utility bill, bank statements, or a letter from a local authority.
Your dependent family members may also be eligible to apply for a BNO Visa with you. Dependent family members are:
Documents such as marriage certificates, birth certificates, and/or evidence that adult family member applicants live with you will need to be included in your application.
Unless you have been living in the UK for 12 months or more, you will need to show you have enough money to support yourself and any dependent family members for six months.
The amounts required are:
All applicants will need to pay the healthcare surcharge, which is as follows:
The healthcare surcharge for children is:
The Hong Kong BNO Visa initially allows you to stay in the UK for five years. After this time, you can apply for Indefinite Leave to Remain. To be eligible, you and any family members applying will need to pass the English language test and the Life in the UK test.
Your immigration lawyer will assist you with making your application and stay in contact over the five-year period to ensure that when it comes time to apply for Settlement, you and your family have taken the steps required to be eligible.
Please phone our office on 0121 777 7715 to make an appointment with one of our immigration lawyers to discuss how we can help you with your Hong Kong BNO Visa application.
Obtaining British Citizenship is a long-held dream for many people. Our Birmingham and London based Immigration Solicitors take great pride in helping our clients achieve their dream. For most people, once they have Indefinite Leave to Remain (ILR) or Settled Status (SS), obtaining British Citizenship is straightforward. However, a sizable number of citizenship applications are refused.
In this article, we discuss the eligibility requirements for British Citizenship and look in detail at some of the common reasons for refusal, many of which fall under the ‘good character’ requirement.
To be eligible to apply for British Citizenship via naturalisation, you must show you:
There is also a requirement of ‘continuous residence’ which means you should not have:
If you have had leave to remain in the UK under a business immigration route such as the Skilled Worker Visa, Investor Visa, or Innovator Visa it is imperative that you work with an Immigration Solicitor throughout the visa period to ensure you receive the best advice on meeting the ‘continuous residency’ requirements should you have to frequently travel for business.
Although the British Nationality Act 1981 does not define ‘good character’, the immigration guidance states that any of the following indicates a lack of good character:
The guidance asserts:
“Each application must be carefully considered on an individual basis on its own merits. You must be satisfied that an applicant is of good character on the balance of probabilities. To facilitate this, applicants must answer all questions asked of them during the application process honestly and in full. They must also inform the Home Office of any significant event (such as a criminal conviction or a pending prosecution) or any mitigating factors that could have a bearing on the good character assessment.”
If you have a criminal record you will normally be denied citizenship if you have been sentenced to four or more years for a crime, regardless of how long ago the offence was committed. You are also unlikely to be granted citizenship if you have committed a sexual offence or an offence that has caused serious harm, and /or you are a persistent offender.
Applicants must declare any fines they have received as they count as a criminal conviction. Failure to mention that you have received a fine could result in your British Citizenship application being refused on the grounds of deception.
A person is notorious if they have become well-known for bad behaviour or qualities and/or immoral deeds. For example, Imelda Marcos gained notoriety for her extravagance whilst the people of the Philippines experienced terrible poverty.
The guidance provides other examples of notorious behaviour, including:
If you have been dishonest or deceptive in your dealings with a government department there is a high chance you will be refused British Citizenship. Dishonest or deceptive behaviour could include:
If you made a genuine mistake and there was no intention to mislead officials, your application will not be refused on the grounds of dishonesty or deceit. However, it can be difficult to prove a lack of intention.
The best way to ensure your British Citizenship application is processed smoothly and successfully is to instruct an immigration lawyer. If you are concerned that you may not meet the ‘good character’ requirement, an Immigration Solicitor, who will know how immigration caseworkers make their decisions, will examine your situation and advise you on how to best prepare your application.
Please phone our office on 0121 777 7715 to make an appointment with one of our Immigration Solicitors to discuss how we can help you with your British Citizenship application or refusal.
On 1 January 2021, a new Points-Based-System (PBS) came into play. It dramatically affects both employers and people who want to come and work in the UK. By introducing a new Skilled Worker Visa to replace the Tier 2 (General) Visa, the British government wants, according to its policy paper, to reduce the “reliance on cheap labour from Europe”. For many employers, the new PBS will result in them having to acquire a Sponsor Licence for the first time. And those who want to work in the UK will have to meet strict criteria. The best way for both groups to successfully achieve the immigration status they need, be it a Sponsor Licence or a Skilled Worker Visa, is to seek expert advice from an immigration lawyer.
Below are three facts you need to know about the new PBS.
Before the transition period relating to the UK leaving the EU ended at 11pm on 31 December 2020, citizens of both countries benefitted from freedom of movement. This meant that as long as they were exercising their Treaty rights (either by being employed, self-employed, self-sufficient, or studying) they could live and work free from visa restrictions in any Member State (which included the UK).
Freedom of movement now no longer applies to the UK. EU/EEA nationals who came to Britain before 31 December 2020 may be able to get Pre-Settled or Settled Status. However, from 1 January 2021, both EU/EEA nationals and non-EU/EEA nationals must acquire a visa if they want to work in the UK.
Anyone applying for a Skilled Worker Visa under the new PBS must attain 70 points in order to qualify. To achieve 50 points, applicants must meet three mandatory requirements. These are:
The remaining 20 points are made up of non-mandatory requirements. The below table sets out how the points are distributed.
The job is at the required skill level
The ability to speak, read, write, and
Salary of £20,480 (minimum) – £23,039
Salary of £23,040 – £25,599
Salary of £25,600 or above
Education qualification: eg a PhD in a subject relevant
The skill level required for jobs to be included in the Eligible Occupations List has been lowered from the level required for a Tier 2 (General) Visa which was RQF level 6, equivalent to a Bachelor degree. Under the new PBS, the role being filled must be skilled to at least RQF level 3, which is roughly equivalent to A-levels. If you are applying for a Skilled Worker Visa, you do not have to hold a specific qualification to satisfy the skill level requirement. Instead, it is the skill level of the job that will establish whether the position is eligible. For example, the role of ‘chef’ features in the Eligible Occupations List; however, ‘cook’ does not.
The reduction in skill level has made it easier for people to obtain a PBS visa in order to work in the UK. And if you want to stay in the UK after your visa has expired, you may be able to apply for Indefinite Leave to Remain .
Although the new PBS immigration system is a significant change in the skilled worker route from what had been in place since 2008, it will result in people who were previously ineligible for a visa being able to live and work in the UK.
For businesses and visa applicants, getting expert immigration law advice is crucial to successfully applying for a Sponsor Licence or a Skilled Worker Visa. Our immigration Solicitors provide the best advice and representation available in Birmingham and London. To speak to us about any immigration matters, please call 0121 777 7715.
With the UK-EU transition period ending on the last day of 2020, many UK companies who rely on international talent to grow their business and meet customer and innovative demands have secured a UK Sponsor Licence. This allows them to employ people from outside the UK, including EU/EEA nationals. By instructing an immigration lawyer, organisations applying for a Sponsor Licence can put together the best application. But what happens after the licence is granted? Is this the end of dealing with UK Visas and Immigration? Unfortunately, no. You will need to ensure you comply with Sponsor Licence duties and responsibilities. Failure to do so could see your licence suspended or even revoked, the latter meaning not only can you not hire people from abroad, but your existing staff in the country on a Skilled Worker Visa may be sent home.
To ensure your migrant employees can stay in the UK and you can continue to employ EU and non-EU talent, below are some tips for meeting Sponsor Licence compliance.
Your best investment regarding your Sponsor Licence compliance is to work with an experienced immigration Solicitor who can advise you of any immigration law changes and review your HR systems regularly.
The Home Office often introduces immigration law changes by stealth. Busy employers can find themselves suddenly in breach of their compliance duties, having been unaware of a change being made. By working with an immigration lawyer, you can be confident that you will always be kept up to date with regulatory changes.
It is also important to be aware that UKVI compliance officers can and do make unannounced visits to licence holders’ premises. Therefore, you need to commit to ensuring your recording and reporting duties (see below) and all Sponsor Licence Management (SMS) entries are kept updated. Your HR systems also need to be orderly, so you can quickly access information about your Skilled Worker Visa employees if it is requested.
There are many recording and reporting duties attached to a Sponsor Licence (the Sponsor Licence guidance runs to 246 pages). The below lists are not exhaustive but do set out some of the main responsibilities you have to meet.
You will need to have the following items up to date and readily available to provide to UKVI upon request.
The SMS is used for reporting information to UKVI. The below must be reported within 10 working days:
Significant changes to your business, for example, it is involved in a merger or acquisition or becomes insolvent, must be reported to UKVI via the SMS within 20 working days.
Part of your responsibilities as a Sponsor Licence holder is to ensure full compliance with all non-immigration laws in addition to those covering immigration. For example, you must ensure that when it comes to UK employees you are paying the correct minimum wage. Regulations covering health and safety, redundancy, and trade must also be complied with at all times.
Holding a Sponsor Licence so you can employ skilled workers from overseas comes with significant responsibility. Before committing to applying for a licence, you need to ensure you not only have the resources and HR systems in place to meet the compliance requirements, but you have access to an immigration lawyer who can provide you with the best advice and representation throughout the life of your licence. Doing so will result in a smooth, easy Sponsor Licence experience and help protect your best interests and commercial reputation.
To find out more about Sponsor Licence compliance please call 0121 777 7715 to make an appointment with one of our immigration Solicitors who are based in Birmingham and London.
On 11 November, the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020, commonly known as the Immigration Act 2020 (the Act), was passed into law. The Act repeals all domestic legislation which provides for freedom of movement and paves the way for a new points-based immigration system, in which EU/EEA and non EU/EEA nationals will be treated the same. However, there are provisions in the Act which deal specifically with Irish citizens, recognising the special relationship between the two countries.
Below are five key facts everyone needs to know about the changes that will take place at the end of the Brexit transition period (1 January 2021).
For many people, the end of freedom of movement was a key factor in voting to leave the EU. In a statement released the day the Act received its Royal Assent, Home Secretary, Priti Patel said:
“This time last year the government promised to end free movement, take back control of our borders and introduce a new points-based immigration system.
Today we have officially delivered on that promise.
The Act of Parliament which ends free movement has completed its journey through Parliament and today achieved Royal Assent.
This is an historic day in our new direction outside of the EU – controlling our own borders and delivering on the people’s priorities.”
The statement went on to say:
“The points-based immigration system will encourage employers to focus on training and investing in the UK work force, driving productivity and improving opportunities for individuals, especially those impacted by coronavirus.
Those wanting to come into the UK to work will need to apply for permission in advance. They will be awarded points for a job offer at the appropriate skill level, if they speak English, and for meeting the appropriate salary threshold. Visas will be awarded to those who gain enough points.”
The Act repeals a raft of legislation which allowed freedom of movement to be integrated into UK law. For example, Article 1 of the Workers Regulation gave EU/EEA nationals the same rights to work in the UK as those enjoyed by British citizens.
In case any laws have been overlooked, Schedule 1, paragraph 6 of the Act provides:
Any other EU-derived rights, powers, liabilities, obligations, restrictions, remedies and procedures cease to be recognised and available in domestic law so far as—
(a) they are inconsistent with, or are otherwise capable of affecting the interpretation, application or operation of, any provision made by or under the Immigration Acts (including, and as amended by, this Act), or
(b) they are otherwise capable of affecting the exercise of functions in connection with immigration.
And just to ensure that absolutely nothing gets in the way of ending freedom of movement, the Act provides for open-ended exceptionally broad powers.
One of the most criticised parts of the Act, as it passed through Parliament, was the provisions of Section 5 which states, in relation to freedom of movement:
“The Secretary of State may by regulations made by statutory instrument make such provision as the Secretary of State considers appropriate in consequence of, or in connection with, any provision of this Part.”
This effectively means that the government can make changes to legislation concerning freedom of movement without “substantive oversight” (i.e. having the changes pass through and be debated in Parliament). Furthermore, the provision has no time limit; therefore, changes could be made many years in the future, and in cases where a subsequent Secretary of State considers amendments are merely ‘appropriate’ as opposed to the usual higher threshold of ‘necessary’.
The UK, Ireland, Isle of Man, and the Channel Islands operate a Common Travel Area which allows citizens from each nation to freely leave and enter each other’s territory. Because Ireland is a member of the EU, the Common Travel Area provisions did not apply because they had leave to enter and remain in the UK under freedom of movement. There were fears that the ‘special relationship’ regarding the right of people from Éire to freely enter and leave the UK would not continue after 1 January 2021. These worries have thankfully been expunged by the provisions of the Act.
The Act does not set out the details of the new points-based system, it simply lays down the essential foundation for it, i.e. ending freedom of movement whilst protecting the ‘special relationship’ between the UK and the Republic of Ireland. It is a monumental piece of legislation as it sweeps away one of the fundamental anchors of immigration policy that has been part of Britain’s identity for nearly 50 years.
What matters now, more than ever is for businesses and people who will be affected by the end of freedom of movement to get prepared. For the former, that means obtaining a UK Sponsor Licence; for the latter, Settled or Pre-Settled Status. For advice and representation on these and any other immigration matters, talk to an experienced immigration law Solicitor.
Based in Birmingham and London, UK Migration Lawyers is one of Britain’s premier immigration law firms. Please phone our office on 0121 777 7715 to make an appointment with one of our immigration Solicitors.