Employment and Immigration Law Update – Immigration Law Update August 2019

The end of free movement, fast track visas for scientists, the new immigration minister and many more topics are covered in this month’s Immigration Update.

End of free movement

Following the announcement that free movement will end on 31 October 2019, we are aware that employers are concerned this changes the advice they have been giving to employees.

It was always the case that in the event of a no deal Brexit, free movement would end on Brexit day. It remains the case that EU nationals already in the UK will have until 31 December 2020 to apply for settled or pre-settled status.

The change is that the government is no longer proposing to allow new entrants from the EU to come to the UK for up to three months before requiring a visa. It has been suggested that a new immigration system will be launched for them from 1 November, but details have yet to be revealed. This is a challenge for employers who are trying to plan for their recruitment, but should not be any reason for EU nationals already here to panic.

If you would like assistance with an application for pre-settled or settled status, or wish to discuss what other options you may have, please contact a member of our Immigration Team.

Fast track visas for scientists

Earlier this month, Boris Johnson announced a new fast track visa for scientists and researchers. He also pledged to remove the 2,000 cap on the number of Tier 1 Exceptional Talent visas and expand the number of universities and research institutes that can endorse candidates. There would also be an ‘automatic endorsement’ for some candidates so that they would not need a specific organisation to endorse them. Importantly, they would not need a job offer before arriving and there would be the option of an accelerated path to settlement in the UK after three years.

On the face of it, the policy sounds very positive. But it would be misleading to say that it is a new visa. Rather it is an expansion of the existing Tier 1 (Exceptional Talent) route, albeit a welcome expansion in any event.

Perhaps the most interesting point is the expansion of those who can endorse candidates from the five existing bodies. However, even more welcome would be a reform of the existing criteria for endorsement. The current rules are difficult to meet and are highly subjective, which has meant that the existing quota has been significantly undersubscribed. If the ‘new’ visa is to prove more successful in attracting the ‘brightest and best’ to the UK, reform of the criteria will need to become clearer and more objective for both the applicant and the endorsing body.

The BBC recently reported that half of the researchers in the scientific workforce are from the EU, with a further half of the international academic talent in UK universities also drawn from the EU. The Government are therefore keen to demonstrate that the UK will remain a centre for scientific and academic excellence after Brexit. Whether a relatively small tweak of the immigration rules will provide the scientific community with such confidence remains to be seen.

Keeping Documents – new guidance for sponsors

The Home Office has updated its guidance on the documentation that must be retained by sponsors. The full guidance can be found here. As you will be aware, guidance changes frequently and it is important that care is taken to ensure that the correct documentation is retained on file (electronic or paper) in a format which is easily accessible to the UKVI.

The Home Office requires that all documentation which relates to the decision to employ a migrant worker is retained on file. This includes (but is not limited to) information on the Resident Labour Market Test (RLMT), the SOC code or code of practice applicable to the employment, employment contract and the appropriate right to work check. We would always recommend that each file has a check list of the required information to ensure that all documentation is correctly recorded.

The new guidance sets out a number of changes from the previous guidance:

• all documents which relate to a Tier 2 migrant’s employment must be kept securely for at least one year after the date that sponsorship ended, or the date on which a compliance officer has examined and approved them after sponsorship has ended, if that is less
• the passport of a sponsored worker is usually endorsed to show their date of entry to the UK and it is important that you retain a copy of the visa endorsement and entry stamp. However, there are some circumstances where there is no entry stamp, for example if the migrant has entered through Ireland, or is a national who is permitted (since May 2019) to use automated ePassport gates (egates). In these circumstances you must have alternative evidence of the date of entry, for example travel tickets or a boarding pass. The Biometric Residence Permit (BRP) should be collected within 10 days of arrival and a clear copy of the BRP must be retained on file
• please note that where the Tier 5 Creative and Sporting visa concession exists, migrants must not use the e-gates, but must present to an Immigration Officer on entry to have the passport stamped accordingly
• changes to documentation required as evidence of advertising (for the RLMT) has been updated to include clarification that a screen shot of a website advertising can be taken on any day that the advert is live, as long as the date of publication is clearly shown on the website. Please also note that if the advert is not on your company website and does not show your name, you must retain a letter or invoice from the publishing website to prove an advertisement was placed.

Ensuring that you keep the documentation in an accessible format is essential in order to remain compliant with your sponsor duties. Should you require any further information on the documentation that should be retained in respect to Tier 2 employment, please don’t hesitate to contact a member of the Immigration Team.

Illegal working does not automatically make a contract of employment unenforceable

Okedina v Chikale [2019] EWCA Civ 1393

Facts

Both parties are Malawian nationals. The Claimant, Ms Chikale, was employed to look after Mrs Okedina’s parents in Malawi. In July 2013, the appellant, Mrs Okedina, applied for a domestic worker visa for Ms Chikale to work in her home in the UK. Mrs Okedina made the application on Ms Chikale’s behalf, providing a great deal of false information to the Home Office. The visa was granted for six months and after the visa had expired, Mrs Okedina told Ms Chikale that the necessary steps were being taken to extend the visa. Mrs Okedina did apply for an extension but on the false basis that Ms Chikale was a family member. That application was refused, as was an appeal in January 2015 – all without Ms Chikale’s knowledge.

Unaware that she was working illegally, Ms Chikale continued to work for Mrs Okedina in the UK. During her employment, Ms Chikale was required to work very long hours, 7 days a week, for approximately two years. She was paid a total of only £3,300.

Ms Chikale was dismissed by Mrs Okedina in June 2015, after asking for more money. One month later, she brought proceedings in the Employment Tribunal (ET) for unfair dismissal, wrongful dismissal, unlawful deductions from wages, unpaid holiday pay, breach of the Working Time Regulations 1998, failure to provide written particulars of employment and itemised payslips, as well as direct race discrimination.

The ET had to consider whether Mrs Okedina could rely on the ‘illegality defence’ which would make Ms Chikale’s contract of employment unenforceable and therefore incapable of supporting contract-based claims because it was either illegal or illegally performed since November 2013. The ET rejected the defence and the Employment Appeal Tribunal upheld that decision. Mrs Okedina appealed to the Court of Appeal.

Court of Appeal decision

The Court of Appeal dismissed the appeal, finding in favour of Ms Chikale.

The Court noted that there are two forms of illegality capable of rendering a contract unenforceable: statutory illegality and common law illegality.

For statutory illegality, the key question was whether Ms Chikale’s employment was in breach of the Immigration Asylum and Nationality Act 2006 (“the Act”). The Act provides for civil and criminal penalties to be imposed on an employer who employs a person who does not have leave to remain or permission to work in the UK. It was held that the Act imposes penalties on an employer but it does not render a contact illegal. The Court of Appeal therefore refused to allow Mrs Okedina to rely on the defence of statutory illegality.

In respect of the defence of common law illegality, the Court of Appeal considered there was no reason to deny Ms Chikale a remedy as she had not knowingly participated in any illegality. This circumstance will rarely occur as most commonly an individual will be aware that they have overstayed their leave to remain and accordingly, it would be easier for the Court to establish common law illegality.

Comment

This is an unusual case, where the employee was wholly unaware that she was working illegally in the UK.

It is important to note that the employer, Mrs Okedina, was committing a criminal offence by knowingly employing an illegal migrant. The penalty for this is an unlimited fine and/or imprisonment. Whilst working without leave to remain is an offence, due to the fact that Ms Chikale was unaware of this, the court opined that she should not be denied a remedy.

This is a complex topic and employers should always take advice prior to attempting to enforce or set aside a contract where they believe there has been illegal working. Our Immigration Team can provide assistance with queries in this regard, together with advice as to whether a prospective employee has the right to work in the UK, in order to avoid such situations arising.

New Immigration Minister

Boris Johnson has appointed former City Solicitor, Seema Kennedy as the new Immigration Minister. Oxford educated Seema is described as British-Iranian and voted Remain in the 2016 Referendum. Interestingly, her position in the Government is notably less senior than her predecessor, Caroline Nokes. The post has traditionally attracted a seat at Cabinet meetings, but Ms Kennedy is only a Parliamentary Under Secretary. Whether this suggests a lesser obsession with Immigration in the new Johnson Government remains to be seen.

These articles are from the August 2019 issue of Employment and Immigration Law Update, our monthly newsletter for HR professionals. To download the latest issue, please visit the newsletter section of our website. Law covered as at August 2019.

The content of this article is for general information only. For further information please contact a member of Birketts’ Immigration Team.