UK Immigration round-up: July 2024

In this edition, you can find:

• UK Immigration Updates
• Alerts, Webinars & Resources
• Upcoming Public Courses
• Round-up Live

We hope you find these updates useful.

UK Immigration Updates

Updated Employer’s Right to Work Guidance

The Home Office has updated the Right to work checks: an employer's guide which sets out the requirements of undertaking right to work checks for employers. The key changes are as follows:

1. Pre-settled Status (PSS) Holders: The Home Office no longer requires employers to carry out repeat checks on holders of PSS. Employers are therefore now only required to carry out a right to work check on holders of PSS prior to their employment commencing. Where pre-employment checks on PSS holders are carried out correctly in accordance with the guidance, the employer will have a statutory excuse in the event of any illegal working by the individual.

2. Biometric Residence Permits (BRPs): The Home Office has updated its guidance to address the phasing out of BRPs by the end of 2024. This is part of its transition to a digital “eVisa” system. The guidance reiterates that, following the changes that were brought into effect on 6 April 2022, that BRP holders are required to evidence their right to work using the Home Office online checking service only (physical BRPs are not acceptable even if it shows a later expiry date).

Where a BRP holder provides a share code to evidence their right to work, the online checking service will display the expiry date of their immigration status, rather than the BRP expiry date of 31 December 2024. The Home Office has confirmed that a follow-up check is not needed until the expiry date of the immigration status. However, if pre-6 April 2022, a right to work check was carried out on a physical BRP and 31 December 2024 was recorded as the expiry date, a follow-up check will be required.

3. Application Registration Card (ARC) holders: Following the replacement of the Shortage Occupation List (SOL) with the Immigration Salary List (ISL) which took effect on 4 April 2024, the updated guidance confirms:

• ARC holders who were granted permission to work on or before 3 April 2024 are restricted to working in jobs on the SOL. Their ARC will state “work permitted shortage OCC”.
• ARC holders who were granted permission to work on or after 4 April 2024 are restricted to working in jobs on the ISL. Their ARC will state “Permission to Work para 360”.

The updated guidance also confirms that an employer will continue to retain a statutory excuse for the length of any Positive Verification Notice, unless they become aware that the ARC holder is working illegally and is continued to be employed. This might occur where the ARC holder’s claim has been refused and any appeal rights exhausted.

4. Clarification that a birth certificate issued in the UK includes consular birth certificates.

It had been hoped that the right to work guidance would have been updated to confirm that all Skilled Worker visa holders (regardless of when they were sponsored) would be able to benefit from the change which took effect on 4 April 2024 that supplementary employment would be allowed on the basis that it is: “in an occupation listed in Tables 1, 2 or 3 of Appendix Skilled Occupations” rather than just to supplementary employment that is either on the ISL or a job in the same profession and at the same professional level as the job for which the CoS was assigned. However, this was not confirmed – instead the only change to the guidance on supplementary employment was to replace the mention of the SOL with the ISL. It is understood that the right to work guidance will be further updated shortly to address this.

MAC publishes review of Graduate visa route

The Migration Advisory Committee (MAC) has just published its rapid review of the UK Graduate visa route and submitted its report to the Home Office.

The Graduate Route currently allows international students to stay in the UK after graduation to find employment for two or three years. This review by the Migration Advisory Committee (MAC) was commissioned by the Conservative Government following concerns about potential abuse and the route's effectiveness in achieving its objectives of attracting top talent in the UK and supporting higher education.

The report found that the Graduate visa route was largely effective at aiding the transition of students to skilled workers, and that evidence showed very low levels of abuse. The MAC advised retaining the graduate visa route in its current form.

See full details of the recommendations from the report in our briefing: The MAC publishes its eagerly anticipated Rapid Review of the Graduate Route (eversheds-sutherland.com)

Updated illegal working penalty reports published by Home Office

The Home Office has published its most recent illegal working penalty reports, see Illegal working civil penalties: anonymous regional report - GOV.UK (www.gov.uk). Employers listed as receiving a fine with the reports were predominantly local fast food and convenience stores with some mention of leisure centres, beauty parlours and garages/car washes. The value of these fines also range significantly from £10,000 to £105,000. The South and Midlands received the most fines in this report.

Home Office digitalisation strategy and eVisa accounts

As part of the UK government’s plan to create a “contactless border” with a digital immigration system, the Home Office has stated that it aims to have all visa holders living in the UK signed up to have an eVisa by 2025. This will impact all physical document holders, including those who have been issued with a Biometric Residence Permit (BRP).

An eVisa is a digital record of a person’s immigration status. It is generally available to those who most recently applied for immigration permission using the ID Check App (or EU Exit App for Appendix EU), during which a UKVI account is created. Once permission is obtained, the UKVI account can be accessed to view immigration status and share this with others. For more information see Online immigration status (eVisa) - GOV.UK (www.gov.uk).

The Home Office has stated that from 1 January 2025, BRPs will be phased out and eVisas will act as proof of an individual’s immigration status in the UK and the conditions attached to their stay. BRPs are currently being issued with end dates of 31 December 2024. Individuals who have a BRP that expires on 31 December 2024 must create a UKVI account and access their eVisa before that date.

If an individual has indefinite leave to enter or indefinite leave to remain and they currently prove their rights through a different kind of physical document, then the Home Office are requiring the individual to make a “no time limit” application in order to be issued with a BRP to enable them to create an online account.

Once a visa holder has created their UKVI account, they will be able to view the details of their eVisa online. An individual’s eVisa will be linked to their passport in their UKVI account and those currently linked to their BRP will need to update their accounts accordingly. Individuals should continue to carry their physical documents when they travel, even after their BRP has expired if it has an expiry date of 31 December 2024. When the transition to eVisas has completed, individuals will not need to show their BRP when travelling to the UK.

Employer are advised to make all relevant migrant workers aware now of these changes and send a reminder for them to look out for an email from UKVI, which will then enable them to create an online account. We can assist with a communication plan to ensure that employees are ready for the changes.

High Court decision for Migrants on Section 3c leave

In the case of R (Refugee and Migrant Forum of Essex and London) v SSHD [2024] EWHC 1374 (Admin), a Judicial review challenged the Home Office’s failure to provide proof of immigration status to individuals with leave to remain under section 3C of the Immigration Act 1971. The High Court deemed it unlawful for the Secretary of State for the Home Department (SSHD) to not provide individuals on ‘3C leave’ with proof of their immigration status. 

Section 3C leave under the Immigration Act 1971 means that if you submit an application to extend your stay in the UK before your visa expires, you will not be treated as an overstayer while you wait for a decision and can continue to remain in the UK on the conditions of your previous immigration leave. However, to date there has never been any documentation issued to those with Section 3C leave. The High Court found that the Home Secretary had acted unreasonably by not providing digital proof of immigration status (through the Home Office’s online right to work system) to individuals under section 3C of the Immigration Act 1971. The decision puts pressure on the Home Office to digitalise immigration status including under section 3C to avoid further legal challenge.

Super priority processing service available via ID app

The Home Office offers expedited processing for additional fees for visa applications. See Get a faster decision on your visa or settlement application: Applying for a faster decision - GOV.UK (www.gov.uk). Previously, only the priority service (5 working day processing) was available for those submitting their visa application using the UK Immigration: ID Check App to confirm their identity (available to EU nationals and those with current BRP’s in the UK). The Home Office has now made the Super Priority Service (at an additional cost of £1000) available via the ID app. Although not guaranteed, those using the Super Priority services usually receive a decision within 24 hours after submission of documents via the ID app.

• Updated guidance on Form NTL (No Time Limit)

The updated guidance on Form NTL (No Time Limit) applications, which are applications for those transferring their immigration status to biometric residence permits, now confirms that applicants can leave the Common Travel Area (UK, Ireland, the Isle of Man, and the Channel Islands) while their NTL application are pending. This is a significant update as it provides more flexibility for applicants to be able to travel whilst their applications are pending.

Alerts, Webinars & Resources

Global employment and labor law update - We’ve recently published our second edition of our quarterly Global Employment and Labor Law update for 2024. In this edition, we highlight some of the key developments that have featured globally during the last quarter, including new laws and case law developments around discrimination, working time and terms of employment. Also featured is the US Federal Trade Commission’s proposed new rule to prohibit the use of non-compete agreements in employment, as well as ongoing global developments around the prevention of workplace harassment and protections for whistleblowers.

Read our latest update 

Catch up with our latest immigration round-up, providing a helpful summary of what's new and in the pipeline for UK immigration, along with links to a wealth of detailed resources and courses at your disposal. For Immigration updates select: Preferences -> Service lines -> Employment & Labor Law -> Immigration and Global Mobility.

Register for UK Immigration updates  

Upcoming public courses

• Sponsor licensing course  – 10 September 2024 & 11 September 2024
• Right to work in 2024  –  08 October 2024 & 10 October 2024

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Round-up Live

Our Round-up Live will be held on 19th September 2024 at 11:00am – 12:00pm (UK time). This session gives you an opportunity to discuss the recent changes within the immigration landscape and to raise any questions about the issues that are currently affecting your business.
The login details to the Teams meeting room can be found below.

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