Immigration Law Update – July 2018
23 July 2018
Right to work appeals against dismissal, migrants’ right to strike, assigning Certificate of Sponsorship to doctors and nurses, White Paper – UK’s exit from and new partnership with the European Union, important changes to the EEA Regulations for those considering dual nationality, Rights of residence for extended family members and more are covered in our monthly immigration update.
Right to work – appeals against dismissal
The EAT has reminded employers of the importance of offering an appeal against dismissal in cases where the employer believes the employee does not have the right to work.
Mr F Azal v East London Pizza Limited (t/a Dominos) UKEAT/0265/17/DA
Mr Afzal was a Pakistani national, with the right to work in the UK as the spouse of an EU national. His five year residence permit was expiring and he applied in time for permanent residence. His employer, Dominos, asked him to provide evidence of his ongoing right to work. When he failed to do so, they dismissed him. No right of appeal was offered. Mr Afzal brought a claim of unfair dismissal.
Before the Employment Tribunal Dominos argued that Mr Afzal had been fairly dismissed. The Judge found they had a reasonable (albeit mistaken) belief that Mr Afzal did not have the right to work. He went on to hold that the dismissal was fair.
Mr Afzal complained that he should have been offered a right of appeal. If this had been properly conducted he would have been able to provide the necessary evidence of his right to work and would have been reinstated. However the ET Judge felt there was nothing to appeal against, as the issue was not whether Mr Afzal had the right to work but rather whether the employer’s belief was reasonable.
Mr Afzal appealed to the Employment Appeal Tribunal.
The EAT noted that Mr Afzal did have the right to work and that this could easily have been resolved through an appeal, with Mr Afzal being reinstated. His Honour Judge David Richardson noted:
“In my judgement, it is good employment relations practice for an employer in circumstances of this kind to offer an appeal. Experience shows that it is an anxious time both for employer and employee when a limited leave to remain or work expires and a further application has to be made. Difficult technical questions may arise; relevant documents may be difficult to find; and I might add that experience shows that the Employee Checking Service is not always fully informed or up to date. Affording an appeal gives an opportunity for matters of this kind to be considered again rather more calmly than can be done as the time limit expires. There will be cases, and in my experience they are not particularly uncommon, where an employer wrongly believes that an employee does not have a continuing right to work. The appeal process affords an opportunity for this kind of case, which can result in real feelings of injustice, to be looked at again.”
The Judge resisted the temptation to substitute the Employment Tribunal decision with a finding that the dismissal was unfair and remitted the case back to the Tribunal to be reconsidered.
Where an employer has concerns about an employee’s right to work, there are two potentially fair reasons for dismissal: illegality; or some other substantial fair reason, namely the employer’s belief on reasonable grounds that the employee does not have the right to work. It is always safer to rely on the latter, in case it subsequently emerges (as in this case) that the employee did have the right to work.
To have a fair dismissal for some other substantial reason, it is important that the employer carries out a reasonable amount of investigation to establish its reasonable belief and that the employee is offered a right of appeal.
If you have concerns about an employee’s right to work please contact our Immigration Team.
Migrants’ right to strike confirmed
Under the Tier 2 and 5 sponsor guidance, sponsors are required to report any sponsored worker who has 10 consecutive days of unauthorised absence. Furthermore, if a migrant is unpaid for more than four weeks, subject to limited exceptions, the sponsor is required to withdraw sponsorship.
Sponsored workers were concerned that this threat of having their visa curtailed prevented them from taking part in strike action. To resolve this problem, the Home Secretary has announced that legal strike action will be added to the list of exceptions to the rule about absences without pay.
Assigning CoS to doctors and nurses
The Home Office has confirmed that following the decision to remove doctors and nurses from the Tier 2 cap, sponsors can assign unrestricted Certificates of Sponsorship (CoS) for these role, even if the migrant has been recruited from outside the UK. The category “New Hires – Doctors/Nurses/High Value/Inward Investment should be selected.
If a sponsor does not have sufficient unrestricted CoS to assign, then for a limited period of approximately three months it is possible to go through the old restricted CoS request system. In this case the CoS awarded will not count towards the quota. However this arrangement is only temporary and organisations sponsoring migrants in SOC codes 2211 and 2231 should lodge requests now to increase their annual CoS allocation if required.
White Paper – UK’s exit from and new partnership with the European Union
The government has recently published a White Paper describing what it is seeking to achieve in negotiating our exit from, and new partnership with, the European Union. The 100 page document only makes limited references to the future of immigration from the EU.
The White Paper says that the UK will end the free of movement of people but suggests EU citizens would be allowed to enter the UK without visas.
The government will release further details of the UK’s future immigration system in “due course” in the form of a separate White Paper and an Immigration Bill.
Meanwhile the Home Secretary recently suggested a similar system could be adopted as exists between the EU and Canada regarding labour mobility for executives.
Important changes to the EEA Regulations for those considering dual nationality
Following a series of cases where the European Court of Justice found the UK was interpreting free movement rules incorrectly, the EEA Regulations are being changed from 24 July 2018.
The most significant change is an acceptance that where an EU national naturalises as a British citizen and becomes a dual national, they can still benefit from all of their rights as an EU citizen. For example in respect of their right to bring extended family members to the UK. Previously the government had insisted that as soon as British nationality was obtained, the individual would be required to meet the requirements of the Immigration Rules, which are not as generous as EU law.
EU nationals who had been delaying obtaining dual nationality due to fears that this would reduce their rights to bring extended family members to the UK can now be reassured. Those people may now wish to apply for naturalisation before we leave the EU, in order to secure their status in the UK.
Rights of residence for extended family members – Secretary of State for the Home Department v Macastena  EWCA Civ 1558
The recent case of Macastena deals with the correct approach to attempts to rely on status as an extended family member under EU law.
The case concerned a foreign criminal who was seeking to be regarded as having obtained permanent residence. This is important because foreign criminals with ordinary rights of residence can be deported “on grounds of public policy or security”; if, however, they have a permanent right of residence they can only be deported on “serious grounds of public policy or security”.
Mr Macastena was granted a five-year EEA family permit on the basis of his marriage to an EEA national but before he acquired permanent residence, he was convicted and sentenced to two years in prison. Since time in prison breaks the continuous residence required to obtain permanent residence, a decision was made to deport Mr Macastena on grounds of public policy/security. However, Mr Macastena argued that he was in a durable relationship with the EEA national before their marriage and therefore he could be classified as an ‘extended family member’, which would mean he acquired permanent residence.
The Court of Appeal held that, for the purpose of qualifying for permanent residence, time spent in a durable relationship with an EEA national (as an extended family member) cannot be added to subsequent time spent as a spouse (direct family member) for the purpose of qualifying for permanent residence – unless the Secretary of State for the Home Department has acknowledged the status of the extended family member and issued the person with a residence card. This is because extended family members can only be recognised as such after an “extensive examination” of their application – if no such application is made, a person cannot rely on status as an extended family member.
Surinder Singh applies to extended family members – Banger v UK C-89/17
The European Court of Justice has held that the principles established in the notorious case of Surinder Singh also apply to extended family members. This means that British nationals who live in another EU country and then wish to return to the UK with their unmarried partner potentially have the right to bring their partner with them. This is not automatic and the relationship may be subject to scrutiny (evidence of two years’ cohabitation will be required), but the couple should have a right of appeal against any refusal to issue a residence permit.
UK net migration at lowest level since 2013
According to figures from the Office for National Statistics there has been a reduction in EU immigration since the EU referendum. The difference between the number of EU citizens coming to the UK for 12 months or more and the number of EU citizens leaving the UK for 12 months or more has fallen to 101,000 in the year 2017.
Net migration from outside the EU has risen to 227,000 – the highest level since 2010.
The overall net migration in 2017 (the difference between the number of people coming to live in the UK for at least 12 months and those leaving the UK for at least 12 months), was 282,000. Whilst net migration is down, it is still in the hundreds of thousands and well above the government’s target of “tens of thousands”.
The content of this article is for general information only. For further advice on any of these topics, please contact a member of Birketts’ Immigration Team.
This article is from the July 2018 issue of Employment Law Update, our monthly newsletter on employment legislation and regulation. To download the latest issue, please visit the newsletter section of our website. Law covered as at June 2018.
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The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at July 2018.