Immigration update – August 2023
29 August 2023
Tripling of fines for those supporting illegal migrants
On 7 August 2023 the UK Government announced a sharp increase in fines for companies who are employing illegal migrants and landlords who are renting their properties to them. The new fines will be applied to breaches discovered from the start of 2024 onwards.
Employers will be fined a civil penalty of up to £45,000 for a first breach of the UK’s illegal working laws (up from £15,000) and up to £60,000 for repeat breaches (up from £20,000).
Likewise, landlords who were previously charged a fine of £80 for renting to an illegal lodger and £1,000 for renting to an illegal occupier are now going to be fined up to £5,000 and £10,000 respectively for a first breach. The fines for repeat breaches will increase from £500 per lodger to £10,000 and from £3,000 per occupier to £20,000.
The UK authorities hope that this will assist them in reducing illegal migration into the UK. Immigration enforcement activity has significantly increased in the last few months and is now back to pre-COVID levels. The imposition of penalties has raised more than £88.4 million for the UK authorities since 2018, which is a result of around 5,000 civil penalties given to businesses that employ undocumented workers. Landlords have been fined over £215,000 via 320 civil penalties in the same period.
It is important for all employers, especially those holding UK sponsor licences, to ensure they are fully up to date with all relevant right to work legislation and check requirements. Getting this wrong can, apart from the increased fines, lead to the loss of the sponsor licence and severe reputational damage (the Home Office operates a ‘name and shame’ regime).
Stricter ‘good character’ citizenship requirements
The Home Office has tightened up the ‘good character’ requirements for British citizenship applications, and they now mirror those already in place for visa applications.
The new rules, which came into force on 31 July 2023, prevent serious criminals from obtaining British nationality regardless of when or where their crime(s) took place. They will apply to everyone who has received at least a 12-month prison sentence in the past.
More scrutiny will now be placed on whether an applicant has generally observed British laws and shown respect for the rights and freedoms of British citizens. Applicants used to be able to apply for British citizenship once a certain number of years had passed since the end of their sentence, irrespective of the crime they were sentenced for or the location, and a criminal record would not necessarily mean that an application would be refused. The Home Office has confirmed that there will be exceptions to the new rules, which they will consider on a case-by-case basis and they will take mitigating circumstances into account.
While most migrants in the UK are law-abiding citizens, it is conceivable that this renewed good character focus will mean smaller breaches of the law could have more of an adverse impact on an application for British citizenship than they had previously.
The UK and Canada sign new Youth Mobility Arrangement
On 14 July 2023, Canada and the UK signed a new bilateral Youth Mobility Arrangement. This agreement will make it easier for young Canadians to come to the UK to experience the British way of living and working. It will also allow British youths to experience the same in Canada.
The new agreement expands on the initial partnership that was launched in 2008. The main improvements are:
- the expansion of the eligibility age from 18-30 to 18-35;
- two new streams to be added to complement the existing Working Holiday category for UK nationals visiting Canada; and
- that participants can now stay in the other country for three years rather than two.
These changes mirror similar new arrangements recently agreed with Australia and New Zealand.
While these changes are beneficial from a cultural experience perspective for the applicant, employers will be happy to hear that more Canadian nationals can now come to the UK for longer to fill some of the vacancies that have been difficult to recruit for. The Youth Mobility visa enables unrestricted work without a requirement to provide sponsorship and incurring the associated visa costs. This visa also offers a valuable pathway to the UK for freelance workers who otherwise would struggle to qualify under other sponsored immigration routes.
Those marrying EU nationals after Brexit are not protected by Withdrawal Agreement
EU nationals may be disappointed to hear of the Court of Appeal’s decision in Celik v Secretary of State for the Home Department  EWCA Civ 921. The judgment confirmed that individuals who marry an EU national in the UK after 31 December 2020 will not be able to apply for leave to remain under the EU Settlement Scheme. The only exception is if they held or applied for an EEA Residence Card or Family Permit as the EU national’s durable partner before the relevant date.
The court also confirmed that not being able to marry before the deadline because of COVID is not a sufficiently good excuse to qualify outside the rules. It was noted that applicants do not have a legal entitlement to a substantively fair outcome of their case, and there was no legal basis for a COVID exemption.
Those getting married to an EU national in the UK going forward will have to qualify under other UK visa categories in order to be able to remain in the UK.
New genuineness requirement introduced for a number of UK visas
Businesses sponsoring a variety of workers, including those applying for Skilled Worker and Global Business Mobility visas, should be aware of the new genuineness requirement the Home Office introduced recently.
From 7 August 2023, sponsoring organisations should ensure that the worker they are planning to sponsor can comply with the following requirements.
- They must genuinely intend and be able to do the role they are being sponsored for.
- They must not intend to take employment other than in the role for which they are being sponsored or as otherwise permitted by their conditions of stay.
While it has been the case for many years that any sponsored position had to be a genuine vacancy, in the absence of the previously mandated resident labour market test, there is now an increased focus on the applicant’s ability to genuinely fill the role. This could result in Home Office caseworkers asking for additional information or evidence when considering applications, which could lead to an increase in processing times.
UK Government reduces acceptable exceptions for late applications under the EU Settlement Scheme
In its newest iteration of the guidance on EU Settlement Scheme (EUSS) applications the Home Office has significantly reduced its willingness to accept late applications.
The deadline to make an application for pre-settled or settled status under the EUSS was 30 June 2021. Since then, the UK authorities have applied a pragmatic attitude to applications submitted after this date. They have now decided that some grounds for a delay in making an application that until recently would have been acceptable will no longer be accepted.
For example, until recently, a lack of awareness of the requirement to apply to the EUSS by the deadline or failure to make an application in time because of lack of internet access, limited computer literacy, or limited English language skills were valid reasons. These will generally no longer be considered reasonable grounds for the delay unless there are other very compelling practical or compassionate reasons, such as lacking the physical or mental capacity to apply or having significant, ongoing care or support needs.
Delays due to the COVID-19 pandemic and forgetting or being too busy to apply are also no longer valid reasons for late applications. The Home Office does concede that every case will be considered on its merits, but it is clear that from now on late applications are much less certain to be approved than they were previously.
Further jobs added to the Shortage Occupation list
We reported last month that the Home Office had added a number of construction jobs to the UK’s Shortage Occupation List (SOL).
- Bricklayers and masons – all jobs (Standard Occupational Classification (SOC) Code 5312);
- Roofers, roof tillers and slaters – all jobs (Standard Occupational Classification (SOC) Code 5313);
- Carpenters and joiners – all jobs (Standard Occupational Classification (SOC) Code 5315);
- Construction and building trades not elsewhere classified – all jobs (Standard Occupational Classification (SOC) Code 5319)
- Plasters and dryliners – all jobs (Standard Occupational Classification (SOC) Code 5321)
Two further jobs have now been added:
- Agriculture and fishing trades not elsewhere classified – only jobs in the fishing industry (Standard Occupational Classification (SOC) Code 5119); and
- Fishing and other elementary agriculture occupations not elsewhere classified – only deckhands on large fishing vessel (nine metres and above) with three or more years’ full-time experience – (Standard Occupational Classification (SOC) Code 9119).
The SOL is designed to attract workers to the UK to fill vacancies in areas where demand exceeds the availability of workers. The main benefit for employers of sponsoring a migrant in a job listed on the SOL is that the minimum salary thresholds and application fees are lower than they are for jobs that can otherwise be sponsored under the Skilled Worker route.
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 August 2023.