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Immigration Update: January 2022

Gateley Legal

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.

Changes to UK right to work process

During the pandemic, the UK government introduced ‘COVID-19 adjusted’ right to work checks – allowing employers to check a candidate’s right to work document virtually via a video call. On 5 April 2022, the adjusted checks will end and all checks will need to be done in person.

From 6 April 2022, right to work rules will also change so that candidates with Biometric Residence Permits (BRP) or Biometric Residence Cards (BRC) can now only use the Home Office online service to evidence a right to work. Evidencing a physical card will no longer be accepted. Candidates will need to log into the government webpage for proving a right to work, which then shares a link to the employer of the person’s current right to work status and any key information such as expiry dates of work restrictions. Employers will then need to copy and retain this webpage with a record of the date that the check was undertaken as evidence of undertaking an on time right to work check. 

This change will not apply retrospectively, so right to work checks prior to 6 April 2022 can still be done with the physical BRP or BRC being copied. 

Companies relying on third party companies to undertake right to work checks on the company’s behalf, known as Identity Service Providers (IDSPs), will also be subject to new regulations from 6 April 2022 to assure that the IDSPs are certified to the required standards of the regulations. 

UK/Australia Free Trade Agreement: global mobility

The UK-Australia Free Trade Agreement was agreed, with both governments needing to interpret the principles of the agreement into domestic law before commencement. Included in the agreement are the following proposals for distinct UK/Australia immigration benefits, such as:

  • Companies providing a service in Australia operating in a significant number of important sectors, including travel agents, researchers and consultants, will be able to easily send British staff to Australia for work, without being subject to Australia’s changing skilled occupation list.
  • The deal will make it easier for UK businesses to hire Australian experts. This will allow contracted Australian professionals from a range of sectors, including engineering and architecture, to travel to the UK for work.
  • As part of the overall mobility package, Brits aged 18 to 35 will be able to travel and work in Australia with a Working Holiday Maker Visa for up to 3 years.
  • Young people will no longer have to work on a farm to use this visa to live and work in Australia. Australia will also pilot a new visa scheme for UK citizens, allowing early career workplace exchanges of up to one year for graduates between 21 and 45.

Youth Mobility visa and the India Young Professionals Scheme

The T5 Youth Mobility visa for individuals aged between 18 to 30 has expanded to include citizens of Iceland in addition to citizens of Australia, Canada, Monaco, New Zealand, San Marino, Hong Kong, Japan, South Korea and Taiwan. 

The T5 Youth Mobility visa is valid for 2 years and allows the visa-holder to work in the UK without any restrictions. 

An identical visa is soon expected for citizens of India who have a degree or diploma, having completed at least three years of study. This will be the India Young Professionals Scheme, which is yet to be included within the UK’s immigration rules.

Auditing the right to work checks for EU employees

As of 1st July 2021, the rules changed with regards checking the right to work for EU nationals. One of the significant changes is that EU nationals employed from 1 July 2021 will need to either evidence a permanent right to work in the UK (indefinite leave to remain) or a time-limited permission to work in the UK (either Pre-Settled Status or another visa). This latter group now also require a system for capturing and reminding employers of the end date of this permission to work in the UK.

When the rules changed, the Home Office made it clear that employers did not have to undertake retrospective right to work checks for any EU nationals who were employed prior to 1 July 2021. This means that if an EU worker had shown their passport as their right to work document, then the right to work check was complete and the employer had a statutory excuse against civil penalty. 

However, many employers felt uneasy with this concession since any EU nationals under their employment could still lose the right to work if they failed to regularise their status prior to 1 July 2021, by not applying under the EU Settlement Scheme by the deadline for example. Employers therefore have been checking the status of EU staff to ascertain their immigration status as of 1 July 2021 and making notes of any future expiry dates of visas.

This week I read a refusal of a sponsor licence where the Home Office inspector had requested not only the right to work documents for EU staff employed prior to 1 July 2021, but also looked for evidence of their expiry dates being recorded and for copies of documents in line with Sponsor Guidance Appendix D regarding keeping records for sponsorship. This approach, whilst clearly incorrect, does highlight the need for employers to make the distinction between those hired prior to 31 June 2021 and those hired afterwards and to make sure that all employee’s current immigration status is clearly understood and all dates with regards to the expiry of immigration status and known, recorded and reminders are set.

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