Business Immigration | June 2021 – What’s the latest?

In this constantly evolving area, this month's article has a notable focus on Right to Work checks (and the changes employers need to be aware of and implement post 1 July 2021) as well as a reminder of the opening of the new Graduate route and the deadline for EU Settlement Scheme applications. 

New Graduate route to open from 1 July 2021

The new Graduate route will open for applications on 1 July 2021. Eligible students holding a Tier 4 or Student visa valid on or after 1 July 2021 will have the opportunity to apply to stay in the UK for 2 years (3 years for those with a PhD) to work or look for employment in any capacity.

The Home Office has also confirmed that the visa fee for this route will be £700, and this will the same for each dependant. It is expected that most recent graduates will apply under this route, rather than the skilled worker route, to allow them the flexibility to move jobs while in the UK.

Draft Code of Practice and Guidance on Right to Work checks from 1 July 2021 – (finally!) published

The long-awaited new draft code of practice and accompanying guidance on right to work checks for EU, EEA and Swiss nationals (referred to together in this article as "EU citizens") from 1 July 2021 has been released. This gives employers just over a week to read, consider and implement the new changes to right to work checks from 1 July 2021.

The key points are:

• From 1 July 2021, Irish citizens along with British citizens will prove their to work using their passport or Irish passport card. Irish passports/cards are added as an acceptable document within the new List A. See further update below relating to the extension of adjusted right to work checks that will benefit this group.

• From 1 July 2021, employers can no longer accept an EU citizen's passport or national identity card as an acceptable right to work document. In most cases, an EU citizens' right to work will be checked and verified online, using the employee's digital immigration status under the EU Settlement Scheme ("EUSS") or status under the new immigration points-based system. Employers will still need to verify the photograph in the online 'profile page' is the person presenting themselves for work by seeing them in person or via a video call.

• List B (Group 1) has been updated to include a frontier worker permit as an acceptable document.

List B (Group 2) has been updated to include where employers wish to hire an employee with a pending EUSS application submitted on or before 30 June 2021. In such circumstances, the employee will either be issued with an EUSS Certificate of Application (CoA) or an EUSS email confirming receipt of their application. In those circumstances, the prospective employer should use the Employer Checking Service (not to be confused with the online right to work service) to obtain confirmation of the pending application in the form of a Positive Verification Notice (PVN), which will provide a statutory excuse for a 6 month period. This will allow the employee to start work pending the final decision on their application after which time a further follow up check will be required.

• If it transpires that an EU citizen, employed before 30 June 2021, does not have immigration status after this date, the guidance sets out transitional provisions for employers that will be in place until 31 December 2021. In this instance, there is no need to cease employment at the point no status is discovered, instead employers should encourage an application to the EUSS to be made, under one of the reasonable grounds for a late application (see update at paragraph 3 below). The employer will be given a 28 day 'grace period' to receive confirmation of the employee's EUSS application i.e. in the form of a CoA. Upon receipt of the CoA, the employer can request a PVN from the Employer Checking Service. It is likely that employers, in this instance, may also be asked to provide evidence of their original right to work check. A PVN will provide an employer with a statutory excuse to a civil penalty for six months. If the employee's application is granted, the employer will need to complete a further online right to work check to maintain their statutory excuse to a civil penalty and, if refused, steps would need to be taken to cease their employment; and

• For new hires, if the Employer Checking Service has not considered an employer's request within five working days, an automatic response will be sent to the employer informing them that the prospective employee may be hired. If the individual has started work based on this message from the Home Office but a Negative Verification Notice is then received, employers should speak to their legal advisers urgently before terminating the employment.

Employers have been awaiting this updated guidance for months and, the new transitional provisions for those who don't apply to the EUSS by the deadline, will be a huge relief to many businesses. There is certainly an emphasis on employers supporting their staff employed on or before 30 June 2021 to make an EUSS application, even if this is late. Thankfully, no immediate termination decisions need to be made in these instances, as we would envisage most employers will have a staff member or two who are in this situation. The guidance reiterates that the criminal offence is reserved for the most serious cases and is not intended for employers who act in accordance with the guidance.

The takeaway point is that employers need to review their internal right to work processes and flows, as well as staff training, so that these changes and transitional measures are implemented from 1 July 2021.

Right to work checks: an employer's guide - GOV.UK (www.gov.uk)

EU Settlement Scheme closes on 30 June 2021

EU citizens (and EEA and Swiss citizens) who were resident in the UK on or before 31 December 2020 have until 30 June 2021 to apply to the EU Settlement Scheme. Those with a diverse workforce should be encouraging applications and making clear this deadline. The latest statistics suggest that completed online applications are generally decided within a week, provided they are straightforward. 

A new guide for EU, EEA and Swiss nationals on viewing and proving their digital immigration status (eVisa) has been published. This explains how people can view and prove their immigration status, how to update their details, what they should expect when crossing the UK border and how to get help accessing their immigration status. Your immigration status: an introduction for EU, EEA and Swiss citizens (accessible version) - GOV.UK (www.gov.uk)

We would strongly encourage employers to circulate this link amongst their workforce, especially if retrospective checks are being sought post 1 July, so that individuals can understand how to prove their immigration status by accessing their own 'share code'.

In other related news, the Home Office have amended their guidance to be much more flexible on COVID related absences for EU citizens with pre-settled status. The general position is that those with pre-settled status should not be absent for more than 6 months in any 12-month period. While a single period of absence of up to 12 months is permitted this is only for an "important" reason.  The reasons up until now had been very limited. However, EU citizens (and their employers) will be pleased to hear that any COVID related reason (including where an individual chose to leave or remain outside the UK due to the virus) will be deemed an important reason, provided the absence is no longer than 12 months.  In these circumstances, EU nationals will not have broken their continuous qualifying period of residence to upgrade to settled status later.

Right to Work COVID-19 concession has been extended to 31 August 2021

As many businesses will be aware, the government helpfully introduced the Right to Work COVID-19 concession at the start of the pandemic last year, allowing companies to take digital Right to Work documents, which were verified in a video call between the company and the prospective employee, with adjusted wording included.

However, on 14 June 2021 the government announced that the date for the easing of lockdown restrictions and social distancing measures would be extended and as a result, the Right to Work COVID-19 concession has been pushed back again until 31 August 2021. This also gives employers more time to make plans for a return to the office environment, even if lockdown restrictions are fully eased in mid-July.

From 1 September 2021, Right to Work checks will revert to either in person checks (by seeing the original document and copying) or via an online check.

Coronavirus (COVID-19): right to work checks - GOV.UK (www.gov.uk)

Visa concession to end of 2021

The Home Office has updated its guidance in respect to what visa applicants can do when the visa application centre is closed. A concession which permits individuals to attend a visa application centre in another country to submit biometric information and their application (in the event their visa application centre is closed as a result of Coronavirus restrictions) has been allowed. This concession has now been extended to 31 December 2021.

If you would like to discuss any aspects of this article or have any other immigration queries, please contact Gemma Robinson in our team.

Or you can find out more in one of our latest on-demand webinars which looked at the key changes to Right to Work checks from 1st July 2021.