Immigration Law for NI Employers

Posted in : Supplementary Articles NI on 12 April 2018
Aisling Byrne
Cleaver Fulton Rankin
Issues covered:

The UK is in the grip of a skills shortage and it’s about to get worse before it gets better. On 2nd February 2018, the CIPD reported, “Visas will only go to those earning more than £50,000, experts predict, as a drop in the number of EU migrants impacts demand.” 

This free webinar on immigration law is brought to you from Legal-Island in association with Cleaver Fulton Rankin Solicitors. We will discuss key aspects of immigration law (including expected changes in the light of Brexit Day on March 29th 2019). CFR experts, Aisling Byrne and Nathan Campbell answer your questions.

It is a crime to knowingly employ a person who is not authorised to work in the UK. The costs to employers if they get this wrong can be massive: £20,000 per employee. After Brexit Day we expect to see at least two tiers of EU nationals, some with full rights to live and work and others with more limited rights. And, with a border separating the soon-to-be non-EU Northern Ireland from the EU Republic of Ireland, it will be particularly easy for employers in NI to fall foul of UK immigration rules. 

Topics discussed in this webinar include: 

  • How to assist existing employees evidence the right to work and permanent residence in the UK 
  • How to handle right to work issues sensitively, in the light of the Baker v Abellio London Ltd case 
  • What the difference is between indefinite right to leave and permanent residency rights and the importance of that difference for EU nationals and their employers AFTER 29th March 2019 
  • How to avoid race discrimination claims 
  • How to avoid unnecessary ‘sponsorship’ costs 
  • How to minimise the chances of work and residency applications being refused 


Please Note: This is a direct transcript of our recent webinar. It may not read as well as a written article would.

Claire: Good morning, everyone and welcome to Immigration Law for NI Employers. My name is Claire Marley from learning and development at Legal-Island and today, we are going to discuss all things Brexit. With less than a year to go until the UK's official departure from the EU, a person's right to work is absolutely crucial, but the prospect of free movement coming to an end has added new complexity. It is therefore vital that employers act now to assess how their business and workforce might be affected.

Today, I'm joined by employment and immigration law experts Nathan Campbell and Aisling Byrne of Cleaver Fulton Rankin Solicitors to attempt to clarify the position of what Brexit means for NI employers and how they can protect and retain their workforce.

Right to Work/ Right of Residence

Q: Can you give us a brief outline on the law as it stands in relation to the right to work, right of residence in the UK?

Nathan: Yes, Claire. So, right now, as you know, EU nationals have freedom of movement rights, which means they can enter the UK to work, seek work or study without needing any sort of visa or permit. This is known as exercising treaty rights. After five years of this, they're automatically entitled to permanent residence. Again, there's no actual requirement to evidence this right, but applying for a permanent residence card can be useful if the individual wishes to obtain British citizenship.

Non-EU nationals do not have these rights, but there are a number of ways in which they can legally live and work in the UK. These include certain types of family visas, student visas, work visas and so on. For the work visas, there's a point system and currently, they're tier two for skilled workers or tier five for certain types of temporary workers, such as charity workers.

Advice to Employers on Sponsorship Costs

Q: Could you give any advice to employers in relation to the sponsorship applications?

Claire: And Nathan, these sponsorship costs can be quite substantial for employers. Could you give any advice to employers in relation to the sponsorship applications?

Nathan: Yes, these applications can be quite costly in terms of applying for the license, renewing existing sponsor license, expanding the scope of it and so on. It can cost several thousand pounds and that's not to mention the fees of professional advisors as well. But there are several things employers should do.

Firstly, obviously, they should make sure the application is necessarily if the individual [inaudible 00:02:50] employee is eligible in some other way such as being a family member of an EU national, then those types of applications are actually very cheap and sometimes free and much preferable for both parties.

Secondly, obviously, ensure the application is correct the first time. Generally, fees won't be refunded if it isn't. Finally, obviously, make sure that your members and staff that are responsible for maintain the license know their responsibilities as failure to report to home office when required could lead to the license being revoked or downgraded and the costs of getting it back could substantial for the business.

Illegal Working

Q: What will be the case post-Brexit?

Claire: So, let's move on to illegal working now. As an employer, you have a duty to prevent illegal working. If you carry out document checks, you will have a statutory excuse against a liability for civil penalty. Will that still be the case post-Brexit? Presumably, all employers have to carry out these tests on all prospective employees regardless of where they come from or they'll face a potential race discrimination claim?

Nathan: That's right, Claire. The right to work checks will become even more of an issue after Brexit because obviously the number of people who will need permission to work in the UK will dramatically increase. Employers should have set procedures to obtain the original documentation, check that it's valid, and take a copy of it so that they have a record that they've complied with the right to work checks. These checks, as you say, should be done on all new employees by making assumptions and only checking certain applicants, the employer would obviously leave themselves open to claims of risk, discrimination.

Q: Will there be more stringent tests or additional paperwork?

Nathan: Well, basically, if you scored the check, the validity of the document that the photo matches the individual, any changes in name such as through marriage have been accounted for. If the right to work is time limit as many of the types of visas are, then you follow up at the relevant time to ensure that the individual still has the right to work. If you've done this and you can show that you've done this, then you'll have the statutory excuse. You won't receive the penalty, which can be up to £20,000 per worker.

Obviously, after Brexit there could be an increased administrative burden on employers to do this if increasing numbers of people only have temporary right to work but as I said, refusing to employ individuals who have the right to work would leave you open to discrimination claims. It's important that your procedures are clear and followed in practice.

Baker v Abellio London Ltd

Q: Could you tell us a little bit more about that and maybe some advice on Baker and Abellio London Ltd how employers can handle these issues sensitively?

Nathan: Yeah. So, that's English employment appeal, tribunal case just at the end of last year, which sort of shows the tension between home office roles and right to work checks and how the employment tribunal might view a discrimination claim. In that case, the employer had conducted an audit workforce when it found that one of its employees didn't have the right to work.

The claimant, in this case, was a Jamaican national and he had lived in the UK for a long time and he did have right of abode under the immigration act 1971, but he didn't have evidence of that in his passport. The employer requested that he obtained a no time limit endorsement on his passport to show this. He refused. As he said, he couldn't afford it and was subsequently suspended without pay, while home office advice was sought.

Ultimately, he was dismissed on the grounds of the legality, but on appeal, this was ruled to be unfair as the individual was not subject to immigration control and so it was not illegal to continue to employ them and the employee's claims for unlawful deductions of wages and unfair dismissal were remitted back to the tribunal to be heard again.

So, it's a difficult position. The employer is in between the home office on one side and potential race discrimination claims on the other. But perhaps in this case, the employer didn't deal with it the best way, obviously by suspending the employer without pay, it was understandable why you wouldn't want to spend hundreds of pounds on application for something that he didn't need.

Claire: Yeah. It seems to me quite a panicked response from the employer, a bit of a kneejerk reaction in stopping Mr. Baker's pay and subsequently dismissing him. To me, that would suggest employers need to be mindful of fair process and taking a sensible approach. Would you agree?

Nathan: Yeah. That was very much what the tribunal said. They said that the focus should be on establishing right to work rather than necessarily a fixation on documentation. It's important to remember that obtaining the documents is just a statutory excuse from liability. So, if the approach taken by the employer is unfair in this regard, then they'll be open to tribunal claims and then also another thing to note, it's important that these checks are done prior to employing an individual rather than years later.

Q: What if you fail to carry out these checks correctly?

Claire: Okay. And what happens if you fail to carry out these checks correctly or at all and you're found employing someone illegally. What would the position be there?

Nathan: Well, the worst case scenario would be that the home office issue fines, which are currently £20,000 per worker or in extreme cases, there can also be potential for criminal action or temporary closure of the business. So, it's a serious issue.

Claire: Absolutely. In some instances, the fines aren't enforced by the home office. Some company directors have since been disqualified, which is obviously a good thing as there's been some sort of sanction, but many say it makes a mockery of the home office penalties, as they're not really enforcing them.

Nathan: Absolutely.

The Impact of Brexit

Q: What more do we know about the impact of Brexit on UK employment law?

Claire: Okay. Great. At the moment, we've covered quite a bit. Now, we're going to move on to the impact of Brexit. With the to and fro of Article 50 negotiations, there's still a great deal of uncertainty as the final outcome. What more do we know about the impact of Brexit on UK employment law? The transition period outlined in the draft withdrawal agreement seems to ensure a certain degree of business as usual until the 31st of December 2020. Can you tell us a little bit more about this, Aisling?

Aisling: Yes, Claire. The current indication from Theresa May is that during the 21-month transition period—that is from 29 March 2019 until 31 December 2020, right to the being nationals will remain. So, basically, any EU nationals here already in the UK are who arrived before the end of the transition period should be okay. The difficulty then will arise for EU nationals who arrive after this date because they'll at least subject to the new rules. And the problem is, of course, that we don't know what those rules are going to look like at the moment.

Claire: Absolutely. I think many businesses are concerned about their ability to recruit workers from the EU after Brexit. Many of the UK employers also could see EU workers as more reliable and more willing to work long, unsociable hours compared to their British counterparts. If free movement comes to an end what problems might arise for employers and are there any benefits? 

Q: If free movement comes to an end what problems might arise for employers and are there any benefits?

Aisling: Obviously, it's going to have a massive impact on employers and I think there's already evidence of some EU nationals actually leaving the UK even at this stage. So, particularly employers who are reliant on perhaps low-skilled workers it's going to be a problem in sourcing those workers going forward. The benefits could be that the government might end up making the rules less onerous than they currently are from non-EU internationals. It might be easier to attract employees from other parts of the world, not just the USA, but at the moment, it appears to be more [inaudible 00:11:45]. This is a problem for employers, particularly those you rely unskilled workers.

Claire: A substantial problem as well could be that employers are looking for automation for certain tasks. I think just this morning the Centre for London announced automation could impact a third of London's workforce, starting with low to mid-skilled jobs. Could there be a new low-skilled worker program? Surely this would be of benefit to any employers facing shortages of low skilled workers?

Q: Could there be a new low-skilled worker program?

Aisling: Hopefully there will be. The existing tier system in place for non-EU nationals already has a tier three, which is meant to cover a low skilled worker visa, but that tier has never been brought into use because the government felt there was no need for it, presumably because of the amount of EU workers coming into the UK. So, it wasn't thought there was a need for it. Post-Brexit, it's likely there will be a need. So I imagine then that the skill and salary requirements of this type of visa would be lower than they are for tier two, but it's certainly going to be more of an administrative burden for employers than they have using EU nationals currently.

Q: What might happen to EU citizens already living in the UK and to British citizens living overseas? Does it all depend on the day they moved member states?

Claire: What might happen to EU citizens already living in the UK and to British citizens living overseas? Does it all depend on the day they moved member states?

Aisling: Yes, it does. It looks like for those that are already in the UK, they'll be able to remain and they'll be able to apply for settled status once they've been here for five years. If they haven't been here for five years by the time UK leaves the EU, they'll be able to continue living here until they have five years in the UK. In any case, if they want to remain at the end of the transition period, they'll need to make some application for settled status. As previously known as permanent resident, it will become settled status. The government has said that this process is going to be quite simple and straightforward.

For those arriving during the transition period, they must register if they wish to stay for more than three months within the UK. If they do [this then 00:14:06], they can continue to live and work here until they've been here for five years and then they can apply for settled status. For those around after the end of the transition period, they won't have these rights and it'll all be dependent on the system that's introduced by the UK government.

For UK citizens who are living in the EU, of course we don't know what the regime is going to look like for them. I think even yesterday, the British Ambassador in Paris had a briefing session for EU nationals living in France and there was a lot of dissatisfaction because essentially he wasn't able to answer the questions that were being raised as to what was going to happen to their status once the UK leaves the EU. So, it's quite unsatisfactory and up in the air at the moment.

Claire: Yes that uncertainty causing a lot of frustration. And reportedly, annual net migration has fallen by nearly a third since the referendum itself. There have been reports that net migration could be reduced by the tens of thousands. Could this happen? What conditions would likely apply to allow for this?

Q: Could net migration be reduced to the tens of thousands?

Aisling: Yes. I think it's happened already. We've heard reports in Northern Ireland of a lot of European workers going back to their home country because of the uncertainty of what's going to happen. After Brexit, non-EU nationals simply won't have the same rights as EU citizens. If EU citizens are in the same boat after Brexit, then it would be much harder to migrate to the UK, whether or not net migration would fall to this level and if that was a good thing is up for debate. If you take Spain as an example, in recent years, they've had a migration deficit but this is because young Spanish workers have been leaving in the thousands because of the high unemployment rate in Spain.

Claire: Of course. Further restrictions on EU citizens would likely have a detrimental impact on UK productivity and it would be a shame. Okay. Let's discuss the settled status a little more. We're hearing a lot about it. If it applies to EU citizens after Brexit, what will it mean?

Q: What is settled status?

Aisling: So, currently after five years, EU citizens are able to apply for permanent residence. If they wish, they can apply for a permanent residence card, which allows them to obtain citizenship. As Nathan has explained, there's no requirement for EU nationals to do that at the moment, but after Brexit, the proposal is that EU citizens already in the UK will be able to apply for settled status and this will replace the permanent residence card.

Once they reach the five-year mark, they can do this. The government has said it will cost no more than the British passport and if you already have permanent residence, then it will be free. If not after Brexit the EU citizen has not be here for five years, then it will be possible to apply to stay until they reached the five-year threshold. It isn't possible to apply for settled status yet, but it's planned to be available later this year. In the meantime, it will be advisable to make the application for permanent residence so that EU nationals can make that very easy transition to obtain settled status.

Claire: So, is there a deadline, Aisling, to apply for this new status in the UK and what happens if you miss the deadline?

Q: What happens if you miss the deadline?

Aisling: At the end of the transition period, EU citizens already here will need to either apply for settled status or for temporary permission to remain until they've been here for five years. If they don't do this, then they won't be able to prove that they're eligible to work here. So, those who don't register in this time might find it very difficult and they've been unable to satisfy their right to work checks that Nathan has talked about.

Also, if you are eligible for settled status, you still need to prove this. This could be difficult for EU workers who have had an irregular pattern of work and maybe some self-employment, in which case evidence of their status for the previous five years might be difficult. If they didn't apply and then they went under the radar for a time, then they may find it difficult to go back years and prove they were [logged 00:18:23] within the UK, before the end of the transition period. That's why it's time for people to start thinking about this now before it becomes too late.

Claire: Really, it's crucial to get your documentation in order now to be able to prove you're eligible to work here down the line.

Aisling: Yes, it is, Claire.

Q: What happens if your application for new status is refused?

Claire: What will happen to those EU citizens whose applications for a new status are refused by UK authorities? Will they be able to stay here while the appeal is pending?

Aisling: Generally, the applications are refused because of lack of evidence. So, in this case, the application could simply be resubmitted with the proper supporting documentation and hopefully then the second time around, they will be successful. They would usually have to pay another fee, of course, unless there's been an administrative error on the part of the home office. But refusal is not the same as a deportation order.

If home office wanted to deport an individual, then they may or may not grant a right of appeal and if there's no right of appeal, then there only option is judicial review, which is a very expensive option for individuals. These applications are also very complex as human rights arguments. We've seen Article 8 right to privacy mentioned under the European Convention of human rights if the individual has built a life here.

So, according to what the government has said, the process shouldn't be difficult, but it should be done as soon as possible so that status issue could be cleared up now if at all possible before waiting for it to become an issue after the transition period has passed.

Advice for Employers

Q: What do businesses need to be doing now?

Claire: Okay. So, let's move on to advice for employers now. What do businesses need to be doing now? Do you have any practical guidance for employers who have foreign national workers who might be concerned about losing key staff members?

Aisling: Yeah. The first step that businesses should take would be to carry out a notice. So, they would assess what members of staff are likely to be affected. If they do have EU nationals who are affected, then they could offer support for these individuals and also give them assistance in their home office applications. So, now it would be a good time to get the documentation in order so employees are ready to apply for settlement. They may just want to apply for permanent residence now and if they apply for that permanent residence card, it will be easy then to transfer to settled status and that can be done for free later.

So, if an employer has EU employees who haven't applied for permanent residence and they fell in the five-year requirement, then now is probably a good time for them to do that. Employees may also need the employer's assistance in the provision of payslips and P60s. Employers can assist in that way. Some employers might even want to consider covering the application fees because currently, the current application fee for permanent residence is £65.

That's unlike the equivalent indefinitely for main fee, for non-EU nationals, which is over £2,000. In the grand scheme of monetary costs to the employer, a £65 fee is actually very small but it could be very valuable for employees to take those steps now to get the permanent residence card. So, it's a worthwhile investment in the long run for employers who want to try and retain EU nationals in their workforce.

Claire: Absolutely. So, big savings there and certainly an incentive to act sooner rather than later.

Aisling: Definitely.

Q: We have an EU employee who arrived in the UK two years ago. Can they stay after the UK leaves the EU?

Claire: Okay. So, to answer a few more specific questions now, we have an EU employee who arrived in the UK two years ago. Can they stay after the UK leaves the EU?

Aisling: If they can, they'll be able to continue to stay here and once they've reached the five-year threshold, they'll be able to apply for settled status. If they reach the five year threshold during the transition period, they can apply for settled status at that stage. The government have already said that it's going to be available this year. If they haven't been in the UK for five years at the end of the transition period, then they'd have to apply for a temporary residence status. 

Q: We have an employee who has resided in the UK since 2005 and acquired a permanent residence document here. Will anything change for them post-Brexit?

Aisling: Not really, but they will need to confirm permanent residence documents into settlement documents after Brexit, but as the UK government has committed, that's going to hopefully be a straightforward process and the costs won't be any costs involved in that, hopefully.

Q: With regards cross-border workers, will there be a special status or special arrangements for regular commuters?

Claire: We have a lot of cross border workers, I think up to 30,000 workers are cross border workers in that they live and work on different sides of the NI/Republic of Ireland border every day and would be directly inconvenienced by border checks. Might there be special status or special arrangements for regular commuters?

Aisling: Yes. As you know, there's a common travel area between the north and south of Ireland. So, currently, these workers can cross the border seamlessly, but as we've all seen in the media recently, the Irish border is one of the main sticking points of the Brexit negotiations—I don't think either side wants a hard border, but if some agreement can't be reached on freedom of movement issues and several market issues, then we can't guarantee that there won't be border checks.

There have been some suggestions of using technical solutions like cameras and pre-registration, but most commentators are sceptical that this might work. So, even if checks are minimal, it's likely there are going to have to be some types of checks. That's definitely going to be an inconvenience for commuters.

Q: Do you think we could expect to see checks on board train services too?

Claire: And Aisling, what about those commuters that are traveling up and down on enterprise? It is a joint service run by Irish Rail and Northern Ireland Railways. As you know, many commuters would travel regularly to Dublin up and down on the train. Do you think we could expect to see checks on board train services too?

Aisling: It sounds ridiculous, but it's definitely not inconceivable that that might actually happen. At the moment, we are EC, guarded checks, [inaudible 00:24:42] getting on the train in [inaudible 00:24:43] to check other people helped them with documents. That's for individuals outside the EU and so post-Brexit. It is certainly possible that some of their checks would have to happen for EU nationals.

Q: Are jobs at risk if we see a return to a hard border?

Claire: And what about Northern Irish working in the Republic of Ireland and vice versa. Do you think their jobs are at risk if we see a return to a hard border, petitioning that end of Ireland?

Aisling: [Inaudible 00:25:13] the right to live and work on either side of the border. That's existed long before the EU and that will continue after Brexit. So on that end, no. But it doesn't mean that a hard border will create practical difficulties for workers who are going across the border.

Claire: So, really what you're saying is the current arrangements will remain in place in that rights enjoyed by British and Irish citizens under the common travel area will be protected after Brexit. These will all be preserved, so the right to work, right to study, and access to security and things like that.

Aisling: Exactly. It's just really the border and how it's going to operate and practice is the main difficulty.

Q: Any thoughts on access to the EU customs union and tariff-free trade?

Claire: Okay. The government has listed access to the EU customs union and tariff free trade as a negotiating priority. Do you have any thoughts on this?

Aisling: Yeah. There have been a number of suggested solutions in terms of the border and east west, how to [inaudible 00:26:14] north, south. This could leave Northern Ireland in a good position as being a gateway to the EU within the UK, but these border issues are obviously very clinically sensitive here. It's something that's really up in the air at the moment of having agreement [inaudible 00:26:31] of that.

Q: Do you think Northern Ireland and the Republic of Ireland will be forced to set up border and custom controls under the existing EU laws?

Claire: Sure. The draft legal text of the withdrawal agreement alludes to a single regulatory space on the island of Ireland with no internal barriers. The draft will not spell out that Northern Ireland remains in the EU single market, but it is implied. Assuming that this is unacceptable to unionists and anything else is unacceptable to the EU 27, it looks like we'll be heading for no deal. Do you think Northern Ireland and the Republic of Ireland will be forced to set up border and custom controls under the existing EU laws?

Aisling: It's difficult to say at the moment and it's all down to what is agreed by the negotiating teams, but it looks as if there's going to have to be some arrangement made in relation to what happens with the land border. If no agreement was reached, then it looks like there would have to be a border and the goal would be to have a softer border as possible.

Q: Are some industries likely to benefit from Brexit and others likely to lose out?

Claire: How is this likely to affect trades in Northern Ireland, for instance, agriculture, a little forestry and fishery sectors in NI? They have the largest in terms of percentage workforce. Are some industries likely to benefit from Brexit and others likely to lose out?

Aisling: Yeah. Like anything, in business, there will be winners and losers. Perhaps the [agri 00:27:56] food sector is vulnerable because of the loss of EU funding and the difficulty in perhaps recruiting workers and low-skilled workers. And then there are the tariff barriers to trade, so farming perhaps might be one of the sectors that's impacted significantly, I would say.

Claire: Are these sectors—there's some that are particularly vulnerable in the loss of EU funding and potential tariff and non-tariff barriers to trade. Can you knock down a few of those for us?

Aisling: Yeah. I think primarily, it's going to be farming. NI farms receive the highest payment for hectare [inaudible 00:28:38] in the EU and because of their reliance ban on low-skilled workers, I think they're going to be facing major difficulties post-Brexit.

Q: Do you have any advice for employers operating in these sectors?

Claire: So, it's particularly difficult for some industries. Okay. And do you have any advice for employers operating in these sectors?

Aisling: Look at the issues now and don't leave it until the last minute. It's probably not worth focusing too much on the minutiae of the day to day negotiations because we still don't know what Brexit is going to look like. There is help out there from professional advisors and organisations like Intertrade Ireland, particularly, and Intertrade Ireland have started to plan scheme whereby qualifying assets small to medium enterprises.

They can obtain up to £2,000 free advice on legal or financial aspects, which Brexit may have on cross-border issues for businesses. So, for businesses who aren't already aware of that, it's maybe something worth looking at to try to avail of that money now and help them plan for Brexit.

Posted Workers

Q: Might laws relating to posted workers change post-Brexit?

Claire: It certainly seems beneficial and quite a substantial sum. At the moment, there are laws on posted workers within the EU. Just for anyone who may not be aware. Posted workers are employees who are sent by their employer to carry out a service in another EU member state on a temporary basis. So, for example, companies, construction workers or foreign journalists—why might these laws change post-Brexit?

Aisling: Yeah. It's certainly very useful for businesses that the vendor [inaudible 00:30:09] visa. Companies in certain industries can temporarily transfer skills on a non-EU worker to the UK post-Brexit in the absence of an agreement. This right will be gone and it may be harder for foreign companies to actually do business in the UK.

Claire: Okay. Thank you, Nathan and thank you, Aisling. I believe that's all we have time for. Our experts' contact details are on screen right now. So, if you have any additional queries, please do contact them directly. A full searchable transcript of this recording of this morning's session will be available shortly in the resources section of our website. We will also try to provide any answers to questions you may have. Please do remember to respond to our post-webinar survey and check out our forthcoming webinars page for details of future webinars. Thank you for joining us today and we hope you listen in again soon.

This article is correct at 12/04/2018

The information in this article is provided as part of Legal-Island's Employment Law Hub. We regret we are not able to respond to requests for specific legal or HR queries and recommend that professional advice is obtained before relying on information supplied anywhere within this article.

Aisling Byrne
Cleaver Fulton Rankin

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