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The following is a roundup of recent developments concerning Brexit negotiations and the United Kingdom’s withdrawal from the European Union.
Political
Immigration
Legal
Things to Know
Copyright © 2016 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@bal.com.
IMPACT – MEDIUM
What is the change? New rules took effect Tuesday with respect to employers’ obligations and liabilities in checking employees’ right to work legally in the U.K.
What does the change mean? The rules now make it a criminal offense for an employer to hire an illegal worker and “knows or has reasonable cause to believe” that the individual lacks permission to work. This is an extension of the offense of “knowingly” employing such a person. Employers will no longer be protected from criminal sanctions even if they did not explicitly “know” that an individual was working illegally. The maximum sentence for the offense has also increased to five years. The Home Office has released an updated guidance for employers containing important information on how to properly conduct right-to-work checks.
Background: The new rules were passed under the Immigration Act 2016 and took effect July 12.
In addition to expanding the employer offense of hiring an illegal worker, the Act creates an offense for individuals who perform any type of work without the proper work authorization.
BAL Analysis: Employers in the U.K. should be aware of the new stricter rules on illegal working offenses and review their right-to-work policies and practices to ensure that they are in full compliance. Employers may wish to contact their BAL professional with questions.
This alert has been provided by the BAL Global Practice group in the United Kingdom. For additional information, please contact uk@bal.com.
What is the change? A streamlined visa application called “Access UK” has launched for individuals applying in the United States for U.K. visitor visas.
What does the change mean? The system has several improvements, including a more concise form, online payment, online biometric appointment booking, translations into more languages, mobile-device compatibility, and integration with priority and super-priority services.
Background: After a successful introduction in China and India, Access UK is being introduced in additional countries, including the U.S. The system has also recently been introduced to applicants in the Philippines, South Africa, Thailand and Turkey, and to visitors in the U.K. who want to extend their visas. It is expected to be available worldwide by the end of the summer.
Visitor visa applicants may use Access UK to fill out the application form, book a biometrics appointment and pay the government processing fees using standard service, priority or super-priority visa service where available. The application forms are available in several languages, including Arabic, Chinese, Russian, Thai, Turkish, Urdu and more to be added, although the form must be filled out in English.
BAL Analysis: The new online system will simplify the application process for visitors, including business travelers, allowing them to complete all necessary steps through a single portal rather than having to navigate multiple websites.
BAL Analysis: While the change in leadership has been accelerated, Brexit procedures have not yet formally begun. There has been no immediate change to the immigration status of EU workers in the U.K. or to British workers in the EU. BAL will continue to update clients on significant developments as Brexit negotiations proceed.
IMPACT – HIGH
What is the change? British voters head to the polls Thursday to vote on whether to “Leave” or “Remain” in the European Union.
What does the change mean? If the “Leave” campaign prevails, U.K. immigration policy will change and employers that rely on U.K. nationals working in Europe and European nationals in the U.K. will need to manage expectations immediately after the vote and strategize for potential disruption in the long term.
Background: The Brexit referendum is the culmination of long simmering political pressure by Eurosceptics. Immigration and the free movement of migrants, which come with EU membership, are at the heart of the debate and, as such, if Britain leaves the EU, more restrictive immigration measures will be introduced.
BAL Analysis: In the event of a “Leave” win, it is critical that employers immediately address their workforce and begin contingency planning as early as possible. Please click here to read BAL’s detailed analysis.
The British electorate will vote Thursday on whether the United Kingdom should leave the European Union. During the final countdown to the “Brexit” referendum, campaigning for both the “Leave” and “Remain” camps will intensify, but current polls show the “Leave” campaign has the majority.
Employers should anticipate that it is more likely than not that the U.K. will leave the EU and, from an immigration perspective, is unlikely to continue to be subject to European rules on free movement of people.
Political Background
The stakes in the Brexit referendum are huge, as it will define Britain’s legal relationship with its European allies, its position on the global stage, and will impact the ongoing stability of the EU. Immigration policy has been a key issue during the Brexit debate, due to the immediate refugee crisis, but also because of longer term social changes and pressures in the U.K. that many attribute to migration. The legal rights of free movement of goods, services and people that underpin the EU’s creation of a single market will most likely be lost in the U.K. if the U.K. chooses to leave the EU. Going forward, U.K. employers may not have the ability to move employees freely as assignees or to deliver specific contracts or take advantage of helpful rulings from the European Court of Justice that allow great immigration flexibility against restrictive national legal regimes. Employers should take steps to evaluate their exposure in event of Brexit, and be prepared to communicate with affected employees as any changes take place.
Who is affected?
The immigration impacts of leaving the EU will be felt on four employee populations:
Next Steps
It is essential that employers prepare for managing their response to the referendum result and devote some time to strategize how recruitment and employment practices (among other economic, legal, social and political factors) would be impacted by a “Leave” vote. BAL recommends that employers take all practical steps to prepare for the Brexit result next week, including:
Work in the U.K. on basis of European passport and have a long-term right to work, and so may not currently be tracked.
Work in the U.K. on an EEA Family Permit/Residence Card and have a time-limited right to work, and so should already be tracked.
Work within Europe on the basis of a British passport, but are managed from the U.K.
Employers can consider whether “leave” or “remain” will best serve their business and future job security for their employees, and whether it is appropriate to communicate the company’s position with employees.
Employers may want to prepare an all-office press release for either eventuality, to reassure both British and European employees. The aim should be to reduce panic and manage any transition. BAL can provide suggested text.
Additional information: BAL is running a seminar on the immigration impacts of Brexit on Monday and can provide advice on communications and strategy to minimize business and employee disruption in the event of a Brexit.
What is the change? The Saudi Arabian Embassy in London has begun imposing new prerequisites on U.K. employers applying for Commercial Visit and Work Visit Visas.
What does the change mean? All business support letters must be attested by the London Chamber of Commerce. Employers must first register with the Chamber and then obtain an attestation from it before applying for Commercial Visit and Work Visit Visas. In order to register, the employer company needs to submit a Formal Undertaking form listing all the company’s authorized signatories along with samples of their signatures. Please note: The business support letters can only be signed by those listed as signatories on the Formal Undertaking form.
Background: The Saudi Embassy in London has instituted several changes to all applications in recent months following a change in consular staff.
BAL Analysis: U.K. employers applying for Saudi Commercial Visit and Work Visit Visas in London should factor in the additional steps and anticipate longer timelines in light of the new requirements.
IMPACT – LOW
What is the change? The production of biometric residence permits (BRPs) is experiencing technical issues affecting approximately 600 permits.
What does the change mean? Some permits will be delayed because of a date transmission problem between the Home Office and the Driver Vehicle Licensing Agency. The permits are expected to be delivered to postal offices and available by early to mid-next week.
Background: The Post Office announced April 11 that some BRPs have been delayed due to technical issues. The Home Office confirmed that there have been delays in transmission of data through secure links between the Home Office and the Driver Vehicle Licensing Agency. Some of the requests automatically timed out after remaining in queue and had to be resubmitted. The Home Office confirmed that 600 permits (not 6,000 cited by the Post Office) were affected, but the permits are expected to be printed and distributed by next week. The underlying data transmission problem is still being investigated.
BAL Analysis: Employees with pending BRP applications should expect minor delays and plan business schedules accordingly.
What is the change? UK Visas and Immigration has published a comprehensive updated immigration policy guidance that encompasses rules for sponsors and points-based applicants.
What does the change mean? Applications submitted are now subject to the updated guidance that implements various immigration rule changes announced in the first quarter of 2016. Old versions of the guidance should be deleted and replaced by the new guidance only, which is accessible here.
Key changes: The new guidance has been issued to reflect various changes across the Immigration Rules. Key changes of practical note to employers and educational sponsors include:
Students – The guidance clarifies that short-term students must “genuinely intend to study” in the U.K. and that the route can be used for students retaking modules. Other changes to Tier 4 student rules include elimination of the English language requirement for those on study-abroad modules from U.S. universities, clarification of who can work or undertake a placement while in the U.K., and an update on circumstances in which a student can change courses.
Employers – Tier 2 guidance has been updated, including the revised distribution of Restricted Certificates of Sponsorship throughout the year, as reported in March. The revised guidance clarifies that salaries may include guaranteed bonuses and allowances paid as standard to settled workers in the same role, and cost of living allowances for intra-company transfers only. The minimum salary for settlement applicants of £35,000 is now in force and will increase annually.
Other – The Tier 5 (Temporary Worker) International Agreement category includes the addition of EU agreements with Georgia, Moldova and Ukraine. The new guidance contains an updated list of providers for English language tests and penalties provisions for private landlords under the Right to Rent provisions.
BAL Analysis: This guidance does not incorporate changes arising out of the Migration Advisory Committee recommendations for Tier 2 or the Immigration Minister’s March 24 statement. Those changes will be profiled by BAL as soon as legal reforms are finalized. Minimum salary levels of £20,800 for Tier 2 (General), £24,800 for short-term staff, £41,500 for long-term staff and £155,300 for high earners in force since April 2015 remain in place, but will likely change some time in the fall of 2016.
The new guidance is a reminder for employers to review compliance policies, particularly in light of enhanced requirements. While the U.K. essentially operates a “self-certifying” work permit scheme, employers can be liable for a range of penalties (fines up to £20,000 and suspension or cancellation of their license) plus loss of reputation if they do not have in place the requisite systems to meet ongoing sponsor record-keeping and reporting obligations. Employers are now required to keep on file all documents relating to sponsor license applications, all shortlisted applications that form part of a Resident Labour Market Test, and copies of employees’ qualifications including degree certificates, among other documents. BAL has prepared a compliance guide for employers, and is available to provide audits and further training on the rules and our various support tools if needed. Please contact your BAL professional for assistance.
What is the change? The U.K.’s visa contractor, VFS Global, is offering several new services to visa applicants in India for additional government fees.
What does the change mean? The new services include walk-in appointments for urgent travelers, “home-to-home” options such as chauffeur service, longer business hours, premium lounge and other personalized services, group appointment booking, a digital assistant, an online payment option, and a final application review.
Implementation time frame: Immediate and ongoing.
Who is affected: U.K. visa applicants in India; some services are limited to certain jurisdictions in India. The walk-in service is also available to Indian applicants applying for Irish visas.
Impact on processing times: The service options do not necessarily affect processing times but may expedite the overall process in completing the application steps.
Business impact: The additional services provide flexibility and convenience for those needing urgent service or personalized assistance.
Background: The new options are as follows. Government fees for the special services are on top of normal government visa fees.
BAL Analysis: The U.K. is expanding optional services to applicants in India that have proven popular in other countries. Applicants are reminded that use of these optional additional services does not guarantee a successful visa decision.