Immigration Law update – May 2018
25 May 2018
GDPR right to work checks and the RLMT, Tier 2 RCoS cap hit, RLMT advertising, 50% of immigration appeals allowed, Windrush generation crisis and new application service from October are covered in this month’s update.
GDPR: right to work checks and the RLMT
The EU’s General Data Protection Regulation (‘GDPR’) presents a challenge for employers in many data processing scenarios, including in relation to immigration.
It is illegal to employ someone who does not have the appropriate right to work in the UK. Breach is punishable by a civil penalty of up to £20,000 per worker. However, employers have a statutory excuse under the Immigration, Asylum and Nationality Act 2006 if they can show that they carried out a right to work check which meets Home Office requirements.
The Home Office expects employers to retain copies of right to work checks securely for the duration of the individual’s employment and for a further two years after employment has ended. They may be retained electronically in a format that cannot be changed or in hard copy. You need to be able to produce these quickly if requested by the Home Office, to demonstrate that you have performed a right to work check.
From a GDPR perspective retention of these documents is justified on the basis it is in the employer’s legitimate interest. Although it is not a legal requirement to perform a right to work check, employers that do not retain evidence of checks will not have a statutory excuse if found to be employing someone who does not have a right to work in the UK.
The GDPR is an ever bigger issue for employers who are Tier 2 sponsors and who have to carry out a Resident Labour Market Test (‘RLMT’) before sponsoring a migrant worker for a Tier 2 General visa. This is because Home Office sponsor guidance requires the employer to retain personal data not only about the employee, but also a considerable amount of personal data about unsuccessful applicants for the job.
Sponsors must retain:
- all applications short-listed for final interview, in the medium they were received, for example, emails, CV’s, application form – this should include the applicant’s details such as name, address, date of birth
- the names and total number of applicants short-listed for final interview
- for each settled worker who was rejected, interview notes which show the reasons why they have not been employed.
All documents must be kept for one year from the date you end your sponsorship of the migrant (or if the migrant is no longer sponsored by you, the point at which a compliance officer has examined and approved the documents if that is shorter). In order to comply with the GDPR, sponsors should make sure this is reflected in their privacy notices and any other information given to candidates, who may not otherwise expect their data to be retained in this way.
Tier 2 RCoS cap hit – again
The demand for Restricted Certificates of Sponsorship (‘RCoS’) is still outstripping the government quota, despite a new annual allocation being available. In most cases, unless the job is on the shortage occupation list or a PhD level role, eligibility is based on how much the sponsor will pay the applicant.
In April, although 2,168 certificates were available, the salary cut-off point was £50k. To achieve this, the Home Office had to borrow 25 RCoS from May. This probably reflects the fact that the cut-off for March was a record £55k so there were even more people than usual re-applying. The cap was also hit in May, the cut-off was £55k.
The NHS has complained about the restrictions this is placing on their ability to recruit doctors. However, the Home Office has said around one third of RCoS are already going to the NHS and does not appear sympathetic to calls to add doctors to the shortage occupation list, which is subject to periodic review by the Migration Advisory Committee.
There have been similar complaints from employers recruiting in IT and engineering sectors, who have pointed out that the UK does not seem to be open to the ‘brightest and best’ as had been promised. The Campaign for Science and Engineering has recently published a Freedom of Information Act request, which provides an interesting breakdown of the different types of role still waiting for RCoS.
There have also been calls to exclude shortage and PhD level roles from the cap. The government has pointed out that the whole point of a quota is to limit numbers in order to reduce net migration.
We do seem to be approaching a crunch situation: does the public really believe that net migration should be reduced and that a rigid quota should apply? Or are they willing to turn a blind eye to certain migrants? Whilst the situation is incredibly frustrating for employers and migrants, we can only hope that it will trigger increased discussion about immigration policy and who should be allowed to come to the UK.
Meanwhile employers who are struggling to recruit should re-assess if the migrant has any other route to gain entry clearance. Those who are paying just below the recent cut-off points may wish to keep applying in the hope of a breakthrough, but need to ensure their advertising is still up to date. Others may need to consider whether there is any other solution, for example for the migrant to work remotely from their home country or whether they should renew efforts to find (and potentially train up) a settled worker instead.
Universal Jobmatch has been replaced by the ‘Find a Job’ service. Adverts posted on Universal Jobmatch before 17 May 2018 will still run for the required 28 days, therefore, complying with the RLMT. However, Tier 2 sponsors should be aware that Universal Jobmatch will close on 17 June 2018 and all adverts will then disappear from the site.Therefore sponsors should now be using the new Find a Job service instead.
50% of immigration appeals allowed
Recent statistics produced by the Ministry of Justice show that in the third quarter of 2017/18 the percentage of immigration decisions reversed by judges was at its highest level for a decade. Half of appeals heard by the Immigration Tribunal challenging Home Office refusals to allow people to stay in the UK now succeed. Human rights and EEA Free Movement cases were the most likely to be allowed, with 57% and 50% success rates respectively.
We would not be surprised if the amount of unlawful decisions made by the Home Office was actually higher, as these statics do not include decisions which the Home Office reversed the day before the hearing. Also not everyone can afford to go through the expensive and lengthy appeal process and some decisions no longer even carry a right of appeal.
Outside of certain priority cases, there is a significant gap of around 12 months between the date of a decision and the appeal hearing date. As a result, the tribunal often has to consider new evidence, changes in circumstance or new case law.
Since 14 May 2018 a dedicated Home Office team has started to review all appeals that will be over 20 weeks old at the date of hearing. If they find that the decision is no longer valid, they will withdraw the decision, notify the Tribunal Service and arrange for implementation of leave/entry clearance to be issued.
Windrush generation crisis
Several cases have come to light in recent weeks of the treatment of Commonwealth citizens who came to the UK from Caribbean countries between 1948 and 1971, known as the ‘Windrush generation’. Those who have lived continuously in the UK since before 1 January 1973 are entitled to indefinite leave to remain pursuant to the provisions of the Immigration Act 1971. However, the Home Office did not keep a record of these individuals entering the UK and many did not receive any official paperwork to confirm their status.
In line with Theresa May’s policy to make the UK a ‘hostile environment’ for illegal immigrants, a large number of people who could not produce paperwork to evidence their right to live in the UK have been affected, losing their jobs, pensions and access to the NHS.
Following significant adverse publicity, the Home Secretary has promised to make it easier for Windrush generation residents to regularise their status at no cost. The Prime Minister has also said that anyone who has lost their job, pension or access to benefits as a result of this scandal, or had to spend money seeking legal advice, will receive compensation. A consultation process is currently underway regarding this.
Plans to close bank accounts of individuals previously identified by the Home Office as illegal migrants have been put on hold, so the list can be checked. The Home Office has also issued new guidance on right to rent and right to work checks, to help landlords and employers who are dealing with the Windrush generation. For further details see Landlords: guidance on right to rent checks on undocumented Commonwealth citizens and Employers: guidance on right to work checks on undocumented Commonwealth citizens on www.gov.uk. Prospective tenants and employees are being urged to contact a dedicated Home Office team for help.
New application service from October
The Home Office has announced that from October 2018 there were will be a new service to allow migrants in the UK to apply for work or study visas, settlement and citizenship. This will be offered by Sopra Steria at 60 locations, including 56 local libraries.
Applicants will submit their supporting evidence and give their biometric information at a single appointment. The Home Office has said this means applicants will then be able to retain their passport whilst their application is processed. There will also be increased use of digital services to upload files in advance. We await further details.
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 May 2018 issue of Employment Law, 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 May 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 May 2018.