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Immigration update: February 2022

Gateley Legal

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Each month, we take a look at the key immigration events that affect businesses, professionals, entrepreneurs and their family members and some of the most topical questions that we are being asked.

Key events

UK Investor Visa closes to new entrants

At 16:04 on Thursday 17th February, the Home Office issued a statement of changes to the immigration rules that closed the Tier 1 (Investor) visa route to new applicants as of 16:00. Those already on the visa route can still make applications to extend their visas until 17 February 2026 and apply for indefinite leave to remain until 17 February 2028.

In its explanatory memorandum, the Home Office shared a snippet of what might eventually replace the visa route:

“The Government intends to make future alternative provision for investment-related migration through reforms to the existing Innovator immigration route. This will make more targeted provision for investment-related migration, offering a route for entry and stay for overseas nationals with a track record of investment activity overseas and credible plans to engage in such activity. It is expected that these new arrangements will be delivered through further changes to the Immigration Rules in Autumn 2022.”

Read more in our article about what the closure of the Investor visa route might mean for future investors

Australian border opens

Australia has re-opened its international border for the first time in nearly 2 years. Double-jabbed visitors do not need to quarantine, but unvaccinated travellers must do so in a hotel for up to 14 days at their own expense. Travellers can enter all states except Western Australia, which remains closed until 3 March and will require three jabs.

Springtime immigration changes anticipated

A reminder that in the next few months, changes are expected to the Representative of an Overseas Business visa route and the Intra-Company Transfer route with the introduction of a wider Global Business Mobility visa route. As well as the introduction of the High Potential Individual visa route for graduates of the most highly rated global universities.

Read our predictions on these routes in our article

Key questions:

Here are a few of the questions that our clients have been asking us this month:

Right to work checks:

6 months following the closure of the EU Settlement Scheme, issues persist with right to work checks. The following issues are just some of the issues that have been coming up this month:

1. Staff at companies requesting evidence of right to work from contracted workers who are employed by another company.

It is a common fear to have a person who is an illegal worker at your place of work, whether they be working on a contract or visiting the premises. However, the burden for being assured of an individual’s right to work in the UK prior to commencing employment is on the employing company. If a cleaner who is employed by a cleaning company is contracted to clean another company’s office, it is the cleaning company that is required to undertake that cleaner’s right to work check.

If this cleaner is found to be working illegally, then the cleaning company is potentially at risk of a civil penalty and/or criminal proceedings, but not the company that is contracting the cleaning company.

The Home Office does advise the following with regards contracted workers however:

“If illegal workers are removed from your business, it may disrupt your operations and result in reputational damage. There could be adverse impacts on your health and safety and safeguarding obligations, as well as the potential invalidation of your insurance if the identity, qualifications, and skill levels of your workers are not as claimed. Accordingly, you may wish to check that your contractors conduct the correct right to work checks on people they employ.”

The advice isn’t for third parties to undertake their own right to work check on contracted workers, but to make sure that any contracted company has robust right to work checks in place.

2. Undertaking right to work checks discriminately

On more than one occasion, I have been confronted with employers who are only undertaking right to work checks on candidates with ‘foreign names’. This is despite the candidates being British passport holders even. The risks of discriminating when undertaking right to work checks is very real when the checks aren’t being undertaken in the same way for all employees.

The Home Office have published a guidance document on this matter which is worth reviewing for all employers

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