Exclusive Q&A on Immigration Law in Europe with Anthony Michael


Posted: 12th October 2016 08:46

Have There Been Any Recent Regulatory Changes Or Interesting Developments?

In light of the UK referendum, there have been a number of interesting developments, however, negotiations are still taking place. The UK’s decision to leave the EU will inevitably cause a period of great uncertainty for businesses and individuals. A number of questions following Brexit remain unanswered. What will happen next? How will immigration be controlled once the UK leaves the EU? Will there still be free movement? The truth of the matter is, no one really knows how the Brexit process will work. The UK is essentially in limbo until it can resolve its internal position. In the post-Brexit reality, we are inevitably left with more questions than answers. What is for certain is that the impact on immigration and tax will not be immediate. Employers will have to take into consideration a number of critical factors, such as employee communication, tax and social security, currency implications and of course, immigration. Businesses will now also need to take their EEA population into consideration. Any EEA national with five years continuous residence in the UK may now wish to consider applying for Permanent Residence, if not for anything else but piece of mind as Brexit negotiations are taking place. To be eligible, the employee will need to demonstrate that they have been resident in the UK and exercising treaty rights, whether through employment, study, self-sufficiency, or job-seeking, for at least the last five years. We encourage any individuals who qualify to apply for permanent residence. 

What Are The Different Options Available To An Employee Or Individual Looking To Relocate?

The options available will depend on individual circumstances and will vary depending on whether the employee is an EEA national, a non-EEA national, a student, or married to a British citizen, to name a few. For simplicity, we will focus on employer sponsored visas as this is one of the most common categories for skilled migrants seeking employment in the UK.
 
Skilled migrants seeking employment in the UK will typically require sponsorship from a UK sponsor with a suitable licence. This type of visa is covered under the Tier 2 category of the Points Based System. The two routes fall under the Tier 2 General or the Tier 2 ICT categories, which will depend on the skilled migrant’s individual circumstances and the business needs.
 
Individuals with permanent or ongoing offers usually undertake the Tier 2 General route and must meet the minimum salary of £20,800 or the minimum for the Code of Practice, whichever is higher. They must also meet the English language requirement. To ensure that the EEA labour market is accounted for, employers will need to conduct the Resident Labour Market Test (RLMT) which involves advertising the vacant role on two websites for at least 28 days. A list of candidates shortlisted for the final interview and any interview notes must be kept on file to prove that no resident worker was able to fill the position.
 
However, if the offer is fixed term, then the individual will typically apply for one of the Tier 2 ICT categories with the two main types being Short-Term (up to 12 months) and Long-Term (up to five or nine years). The ICT categories do not require that the individual meets the English language requirement, however, the applicant must have been employed for 12 months with the sponsoring organisation outside the UK. The minimum salary will depend on the ICT category, and it is important to note that unlike the Tier 2 General category, the Tier 2 ICT categories do not lead to Indefinite Leave to Remain.
 
The visa process includes two stages of the applicant is applying from outside the UK. Firstly, the migrant must be issued with a Certificate of Sponsorship from the UK employer. Once this is issued, the migrant will have to apply for Entry Clearance from their resident country. The application process includes an online form, supporting documentation and biometric information. When the visa is due to expire, the applicant is able to renew their visa by applying for Further Leave to Remain, if applicable. They will be able to extend through a number of options, which typically include through the post or an in-person appointment at one of the Premium Service Centres across the UK. 

Can You Outline The Current Labour Market Conditions In Your Jurisdiction?

Before the UK voted to leave the European Union, the UK unemployment rate had reportedly fallen to 4.9%, the lowest since July 2005. The labour market continued to strengthen in spring 2016 with record employment, with Wales having the fastest declining rate of unemployment over the past 12 months. However, following the result of Brexit, statisticians are predicting that the positive trend is unlikely to last. Due to the uncertainty surrounding Brexit and its potential impact on immigration, firms may potentially consider cutting back on recruitment and reducing headcount overall. Analysts predict that the decision to leave the EU will have a significant negative impact on the UK labour market and expect this data to appear materially over the next few months.

What Skill Shortages Currently Exist In Your Jurisdiction?

The UK Shortage Occupations List details the professions that are in high demand in the UK – including roles in engineering, healthcare and arts and entertainment – for which there are not enough resident workers to fill vacancies. The Migration Advisory Committee (MAC) regularly reviews the list and will remove or include roles where necessary. Employers who wish to recruit an individual from outside the EEA to fill a vacancy that is on this list will be able to issue a Tier 2 Certificate of Sponsorship (CoS) without the need to complete a Resident Labour Market Test. It is important for employers to check the shortage occupations list for any changes prior to issuing the CoS as the MAC periodically reviews the list and implements new changes. For example, in November 2015, the list was updated to include nursing after employers expressed their concerns with the shortage in this particular sector. The MAC revisited this addition and in March 2016, they announced that, although nursing would remain on the shortage occupation list, a Resident Labour Market Test would be required before recruiting a non-EEA nurse. 

Can You Outline Any Penalties Or Restrictions For Non-Compliance With Immigration Regulations?

It is the UK employer’s duty to prevent illegal working by carrying out document checks and right to work checks for all employees of any nationality. Checks on non-direct employees such as contractors are not compulsory, but recommended. This includes obtaining the employee’s original documents such as passports and any applicable visas, reviewing them in the presence of the holder and then keeping a copy of the documentation on file with a dated statement that the original documents have been seen and who has certified the copy. Sponsors are also responsible for reporting any migrant change of circumstances during employment, such as if the assignee misses their first day of work or if the assignee’s contract of employment ends earlier than expected. Under the points-based system for UK immigration, employers found to be employing illegal workers or not complying with their sponsorship duties will face civil or criminal penalties. Non-compliance with the immigration rules may result in removal of the sponsorship licence to hire migrant workers, a fine of £20,000 for each person working illegally, to be paid by the employer, two-year imprisonment for knowingly employing an illegal worker and civil penalties for irresponsible or negligent recruiting practices. 

What Key Trends Do You Expect To See Over The Coming Year And In An Ideal World What Would You Like To See Implemented Or Changed?

Since the establishment of the European Union, the UK’s population has steadily increased and then eventually grew exponentially from 2000 onwards. EU migration has more than doubled since 2010 and is nearly half of all foreign born migration to the UK. The government sought to address these issues in an attempt to reduce immigration by way of restricting access to benefits and continually imposing stricter rules on immigration overall. The result is Brexit, which was very much a referendum on immigration.
 
What we expect to see as negotiations take place may eventually lead to a decrease in migrant flow and the implementation of increasingly stringent immigration policies for both Europe and the non-EEA population. A new immigration system will need to be launched in order to account for the European population, which may impose visa requirements for EEA nationals. Potentially, all EEA nationals already in the UK may be exempt from any new regulations and policies, although the government has yet to formally confirm this.
 
Although we are inevitably left with more questions than answers post-Brexit, we would encourage employers to act now in preparation for the upcoming changes and challenges ahead and start thinking about their EEA population. Leaving the EU will require a series of reforms which have yet to be decided and we expect to be able to guide our clients as the answers to these questions slowly unfold.
 
In an ideal world, I would like to see an immigration system which encourages people to come to the UK and help continue to grow the economy. A key demographic is students, and since the post study route is being closed down, there has been no real option for them to remain here beyond their courses ending without a Tier 2 visa. I would like to see an immigration route established for this demographic to encourage the best and brightest to study here and remain here and contribute positively to the economy following the completion of their studies. 

Anthony Michael has amassed a wealth of experience within UK and global Immigration matters. Having practised Immigration and Nationality Law for over 8 years.

Anthony regularly services his clients by advising on all aspects of the Points Based System (PBS) with particular reference to Tier 1 and Tier 2. He is also fully conversant with non-PBS applications and has vast experience in Nationality Law in addition to Indefinite Leave to Remain applications, EEA applications and spousal applications. Anthony is able to advise both corporate and private clients on all their immigration needs.

Anthony also provides advice on compliance and prevention of illegal working and his clients continue to hold A-rated Sponsorship status, which is testament to his in-depth knowledge and skills in this area. 

Anthony can be contacted on anthonymichael@deloitte.co.uk 

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