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Immigration issues arising in the context of the return to work


Immigration status is not a protected characteristic, but employers of overseas nationals must navigate part-time work, right to work and termination processes carefully.

Extension of the furlough scheme

Under the extended furlough scheme, from August through October, employers will be able to bring furloughed employees back to work part-time. Employers of furloughed sponsored skilled workers need to consider compliance with salary requirements when planning. Please seek advice on a case-by-case basis.

Prevention of illegal working

In relation to non-UK nationals, businesses organising a return to work should ensure that employees’ right to work in the UK is intact. Employers should ensure that workers make further applications to remain in the UK if their visas are close to their expiry dates. Under COVID-19 immigration policies, migrants in temporary visa routes such as Tier 2 Intra Company Transfer might be able to switch into visa routes leading to settlement in the UK, such as Tier 2 General.

Where sponsored employees are returning to work, employers should ensure that they report any changes such that the record of the migrant’s role on the Sponsor Management System accurately reflects their work and job details. Salary adjustments and unpaid leave are examples of events that trigger reporting duties.

The Government has also provided for conducting right to work checks via video conferencing, including the required rechecks on documents evidencing a temporary right to work. Particular processes must be followed, such as noting the adjusted video check and rechecking after termination of the Government’s COVID-19 policies.

The closure of UK visa application centres, where applicants submit biometric data as part of the application process, means that employers will have to use the Employer Checking Service more often than usual. The Employer Checking Service can verify that a migrant has an ongoing application and confirm that they have the right to work whilst that application process is ongoing.

Conducting right to work checks is crucial to mitigating the risk of civil and criminal penalties that an employer can suffer for illegal working. However, it is important to remember that employees might have the right to work in the UK without having approved documentation. Members of the Windrush generation and certain EEA nationals’ family members are historical examples.

Some EEA nationals and their family members might be examples in future: During the planned grace period for EEA nationals to apply to the EU Settlement Scheme from 1 January to 30 June 2021, after the end of the post-Brexit transition period, those who are already living in the UK but have not yet applied to the EU Settlement Scheme could be indistinguishable to employers from EEA nationals arriving in the UK as visitors, without the right to work.

Termination

It is important for employers to follow normal dismissal processes when terminating the employment of migrant employees. In doing so, they should not rely on contravention of a legal duty as the basis of dismissal. Right to work checks are not a positive legal duty. They are a means for employers to prevent illegal working and to avoid the related penalties. It is best to rely on contractual grounds, where the contract includes wording requiring the employee to provide right to work documentation. Alternatively, the employer could rely on the employee’s failure to comply with a reasonable instruction.

When dismissing a sponsored skilled migrant, a sponsor must report the termination of sponsorship. If you need help with immigration issues around the return to work, please contact Samar Shams, Immigration and Global Mobility Partner at samar@spencer-west.com.


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