Immigration and Eligibility

Entitlement to Work

An employer has a legal responsibility to prevent illegal working.  He must ensure that the employee is entitled to work in the United Kingdom.

It is essential to undertake document checks on potential recruits.  The UK contains a range of racial and ethnic backgrounds. An individual’s race or ethnicity origin is no indication of entitlement to work or not.  Any discrimination on racial grounds could lead to liability under discrimination legislation.

An employer is entitled to verify entitlement to work.  A prospective employee must provide an employer with an original version of documents from one of two lists.  The documents should not only be produced but must be checked to ensure that they are genuine and that the person named is the person in the documents and is the prospective employee.  If the document indicates the employee only has limited leave to work in the UK, the check must be re-undertaken every twelve months.

There is an on spot notice of up to £10,000.00 per illegal migrant worker if an employer cannot establish that it has undertaken the relevant checks. In addition there is the risk of prosecution and an unlimited fine or prison for up to three years.

The employee should be asked before commencing employment to bring the appropriate documentation. Alternatively, the offer could be made conditional upon production of the documents.  The relevant documents must be kept either by way of photocopy or digital image.  A record of every document must be kept.   It is only permitted to keep original documents for the purpose of copying.  Original documents must not be kept for more than a day.   It is an offence for an employer to retain any such documents.

Automatic Entitlement

The following groups are not subject to immigration control and are employable without any restrictions.

• British citizens;
• Members of the common travel area which is the UK and Republic of Ireland;
• Certain Commonwealth citizens;
• EU and EEA Nationals.

Some employees may need to register or get authorised from the UK Border Agency to work in the UK legally.

Employees from the European Economic Area which includes the European Union and five other European states are entitled under European law to work in the UK.   However some will need authorisation from the UK Border Agency to work in the UK legally.   Even if an individual is from an EEA country, they must still be asked for an original version of the relevant documents in order to prove their entitlement.

Nationals of Latvia, Slovakia, Czech Republic, Lithuania, Slovenia, Estonia, Hungary and Poland can live and work in the UK.  However a Workers Registration Scheme (WRS) has been set up to monitor the participation of nationals from these countries in the UK labour market.

Unless exempt, all workers must apply to register under the WRS with the UK Border Agency within one month of starting work.   They will need to provide evidence of their employment as part of the application and a £90.00 fee unless they already have a certificate of registration. The scheme does not apply to Bulgaria and Romanian nationals who joined the EU on 1st January 2007.

An employer should take a copy of the worker’s completed registration application form and keep this until official notice is received confirming the worker has been registered.   It is an offence to employ a non-exempt unregistered national from one of the above countries for more than thirty days without obtaining a copy of their application form or their certificate of registration.

Once registered, the UK Border Agency provides the employer with a registration certificate.   Although it is the employee’s obligation to register, it is the employers responsibility to verify that they have done so by copying their application and keeping their copy of the certificate. There is a penalty of £5,000.00 for failing to do so.

Immigration law in the United Kingdom

Immigration law in the United Kingdom is organised on a UK wide basis.  There is a common travel area between the United Kingdom and the Republic of Ireland, which is recognised by the Immigration Act.  The influence of European Union Treaty rights has been substantial in the area of immigration.

Citizens have the right to enter and remain in their country of citizenship.  Non-citizens have no automatic right to do so.  A State is not obliged to admit aliens.

Subject to an international treaty to the contrary, the States may regulate the right of aliens (non-nationals) to enter reside and/or work in the Stae.  They may determine the conditions on which the spouses and family members may reside with the primary applicant.

States have the right to deport aliens in their territory provided it does not infringe international law.  There are however a number of conventions dealing with asylum rights.  The Geneva Convention prohibits the return of a refugee to a country where his life and freedom will be threatened on account of race, religion, nationality or membership of a particular social group or political opinion.

Leave to enter and remain in the United Kingdom, a variation of terms and conditions of leave and deportation orders are all administered in the name of the Home Secretary/Justice Secretary.

Those with a right of residence or so-called right of abode are free to live in, come and go from the United Kingdom without let or hindrance, subject to restrictions to allow their status to be ascertained.

Those without a right of abode may live, work and settle in the United Kingdom by permission and subject to regulation and control of their entry into, stay in and departure from the United Kingdom.

Certain Favoured Categories

Citizens of certain British Overseas Territories and certain Commonwealth citizens who were entitled to reside prior to the commencement of the British Nationality Act and have not ceased to become Commonwealth citizens have a right to reside.

Under EU law, citizens and nationals of EFTA countries are entitled to enter the United Kingdom with a freedom of movement provisions in the Treaty.

Citizens of the Republic of Ireland have a right to enter free of immigration controls as to persons from the Isle of Man and the Channel Islands.

Others will do not fall into the above categories, may not enter the United Kingdom without leave to enter.  This may be for an indefinite period or limited period.  It may be subject to conditions.  Leave may be varied once granted.  It may be restricted or enlarged.

Regulation of Immigration

The Immigration Act 1971 as amended is the basis of immigration law. The Home Office regulates immigration matters.  In practice, many of the key decisions were made by Immigration Officers with a certain degree of review on the part of a court.

The Justice Secretary/Home Secretary sets down rules for regulations of entry and stay in the United Kingdom.  In 1999, Immigration and Asylum Act sought to reform the immigration administrative system to make it faster, fairer and firmer.  It allows leave to enter to be granted outside the United Kingdom in order to remove pressure at the point of entry on Immigration Officers.  Leave to enter is potentially renewableUK Immigration Visas

Laws Tightened 2014 & 2016

The immigration laws were made more stringent by the Immigration Act 2014 and the Immigration Act 2016. The employer commits an offence if he employs a person in breach of the legislation. There are increased penalties for second and further offences. The employer can be guilty if he knows or has reasonable cause to know that the employee is not qualified. Second and further offences are indictable and subject potentially to imprisonment for up to 5 years or unlimited fines

The immigration authorities have extensive powers to enter premises, search, obtain evidence and ultimately close the business.

There are also substantial civil penalties which may be applied of up to £20,000 per employee unlawfully employed

Visas

A visa is a document usually stamped or pasted on to a passport giving permission to enter a country. Visas are required for entry into the UK for nationals of most African Asian and South American states. Certain Eastern European countries including Belarus, Kazakhstan, Kyrgyzstan, Russia, Tajikistan, Ukraine, Uzbekistan nationals also require a visa. The list is prescribed by law and changes from time to time.

The five principal types of UK visas are

• visits visa,
• employment visa,
• student visa,
• business visa and
• settlement visa.

Generally, an applicant for visa holder must have a passport for at least six months unexpired period. British consuls and embassies administer visas applications and charge fixed fees.

Visit Visas

A visit visa permits the holders to enter and leave the UK any number of times during its validity. They may not stay for longer than six months on each visit. Visit visas can be issued for periods of six months, two years, five years or 10 years. Longer visits would be issued for regular travellers only with a previous history of visiting.

An applicant for visit visa must show that they wish to visit the UK for not more than six months and that they intend to leave in that period. They must show they have enough means to support and accommodate themselves without working or requiring public assistance. They must be able to meet the cost of the inward and outward journey.

They must not be in transit to a third country. They must not intend to any or certain list of activities. They must not intend to marry, form a civil partnership or give notice. They must not intend to receive public, private medical treatment fees for a longer term visas are considerably higher than for a short-term visa. An applicant for a visit visa who has not previously travelled may be required to attend a personal interview at the relevant embassy or consulate. Evidence of the relevant means et cetera must be furnished.

There is a separate category of visa for visiting the UK for a medical treatment subject to conditions. Evidence is required that a person can afford to pay for the consultation treatment and procedures.

Compulsory TB screening applies to visitors for certain countries who apply for visas of more than six months. A medical certificate must be furnished showing freedom from the disease.

Categories of  Employment Visa

In respect of non-EU nationals, the UK  operates a points-based system of work visas. Tier 1 relates to self-employed persons. Tier 2 covers the majority of work-related visas. There is a cap on Tier 2 general visas. They are subject to skills requirement and pay thresholds for the jobs concerned.

Certain persons who would otherwise qualify for a tier 2 Visa will not qualify where they have been previously sponsored by an employer under a Tier 2 Visa and have left the UK where the visa lapsed and expired within the last 12 months.

There are six broad categories of employment visa described by reference to various tiers. Three are based on points namely those applicable

• to certain skilled workers who have been offered employment sponsored by an employer,
• high-value migrants including investors, entrepreneurs and exceptionally talented persons who may enter without a job offer and
• temporary workers with a UK sponsoring employer participating in a youth mobility scheme

Non-points based visas are potentially applicable to certain categories including

• Commonwealth citizens with UK ancestry (at least one grandparent born in the UK),
• employees and business owners from Turkey wishing to establish a business or already employed in the UK,
• certain other categories including representatives of overseas firms and businesses, domestic workers and others.

There two routes; the short occupation list and the labour market test.  Under the latter route, the employer – needs to show there is no suitable resident worker available to fill the post, having advertised it for a certain period. Jobs offered through the resident labour market test must meet skills and salary thresholds;  £30,000 as of April 2017 subject to occupations specific requirements.

Jobs under the shortage occupation list do not need to meet the resident market labour test and are subject to salary thresholds for each job, which may be lower than the above level. Each year two shortage occupation lists are published, one for the UK as a whole and one for Scotland only.

Employment Visas and Sponsoring Employer

In most cases, the employer must a licensed sponsor. The employer is responsible for verifying that the relevant skills requirements. The UK government has published a code of practice for skilled workers standard occupational classification codes. The codes provide for six classifications. There are minimum salaries in respect of particular roles under the SOC codes.

Generally, incoming employees must meet a resident labour market test.There are exceptions for jobs on a shortage list and the jobs paying over £159,600 per annum.The job must be advertised in two or a more approved media for at least 28 days. In some cases where the salary is below a particular level, the job must be advertised as through Jobcentre Plus (now Universal Jobmatch medium). The advertisement must contain minimum prescribed details including salary, range, responsibilities, selection, criteria and job title

With the certificate of sponsorship, the overseas prospective employee may seek a Visa.The prospective employee

• must have sufficient knowledge of English unless he is a national of an English-speaking country;
• he must have personal savings of at least £945 for 90 days prior to the application and £630 for each dependent
• in some cases, he has tuberculosis test results
• disclose travel history in the previous five years
• clean criminal record certificate in any country in which he has lived for more than 12 months in the last 10 years if working with vulnerable persons

A person proves his knowledge of English by passing an English language test with at least the common European framework of reference for languages level B1 in reading, writing, speaking and listening or has an academic qualification taught in English recognised by NARIC

Inter-corporate Transfer

The inter-corporate transfer Visa provides for long-term staff and graduate trainees. Long-term staff are persons present for over 12 months in a role that cannot be cannot be undertaken by a new UK employee. The transferring employee must have worked for the company for at least a year. This does not apply if the individual is paid more than £73,900 per annum.

The graduate transferee Visa is for transferees who take part in a graduate trainee programme for particular specialisms. The graduate must have worked for at least three months’ work for the employer abroad.

Fees

There are fees payable on the application. They are paid per worker and individual and dependent. There is also a per person health surcharge. The cost of a family of four coming to the UK five-year Visa can amount to almost £8,700

There is an immigration skills charge for employers sponsoring tier 2 employees. This depends on the length of residence and the employer size. The charge is prospectively significant and could amount to more than £10,000 depending on the particular factors family size et cetera

Indefinite Leave to Remain

A person who has been lawfully resident for five years or more in the United Kingdom may usually apply for indefinite leave to remain.

• A person with a tier 2 Visa who has lived and worked in the UK and spent no more than 180 days outside the UK in any year and is still required for the job
• the job generally pays more than £35,000 per annum (unless minimum earnings threshold exemption applies)
• the salary pays the amount listed in the code of practice.