Business Immigration | May 2021 – What’s the latest?

The business immigration updates this month continue to keep employers and sponsors on their toes. The government has taken a welcome U-turn on Right to Work checks, announced the new Young Professional Scheme, created a traffic light system for international travel post 17 May 2021, confirmed that discretion will be exercised for some late EU Settlement Scheme applications and published a new plan for immigration and border control. This article considers these points in more detail. 

Right to Work concession has been extended to 20 June 2021

As many businesses will be aware, the government helpfully introduced the Right to Work COVID-19 concession at the start of the pandemic last year, allowing companies to take scanned Right to Work documents which were verified in a video call between the company and the prospective employee. The government also originally suggested that companies would need to conduct retrospective physical Right to Work checks within 8 weeks of these measure ending.

A surprising announcement by the government confirmed that the Right to Work COVID-19 concession would end earlier than the stage 4 roadmap, on 16 May 2021. This prompted many businesses to panic, as most were unlikely to be back in the office by this time as social distancing measure remain in place and some were still considering whether a permanent move back to the office would be required. As such, the government came under heavy criticism. In response, the Right to Work COVID-19 concession has been extended until 20 June 2021.

This means that from 21 June 2021, Right to Work checks will either need to be in person by checking the original document or via an online check. There remains an outstanding point of contention that the online checking service is limited to those with status under the EU Settlement Scheme or those who have a Biometric Residence Permit. This significantly disadvantages those simply relying on their passports to evidence their right to work, such as British nationals, as they must arrange for the physical document to be checked. We are aware of various drives pushing the government to provide a British online passport checking service but for now we must anticipate this will not be available until later this year, at the earliest.

In other good news, the government confirmed that retrospective checks for those completed under the Right to Work COVID-19 concession will no longer be required. Therefore, employers can rely on the Right to Work documents obtained remotely from 30 March 2020 to 20 June 2021 and no further action is needed, provided the adjusted guidance was used.

New young professionals' scheme for Indian nationals

In a recent announcement the UK has signed up with India to allow young Indian and British professionals to live and work in one another's countries without sponsorship.

This will be a new two-year category opening from 1 July 2021, called the Young Professionals Scheme, for those aged 18-30. India is the first country that the scheme will be open to which indicates more countries may well be added in the future. There is a limit of 3,000 applications a year and until the rules are released to understand the exact requirements of the scheme, it is difficult to understand how this will differ to the Youth Mobility visa currently in place for certain nationalities. Sponsors will no doubt be happy to hear that other non-sponsored routes are slowly becoming available, reducing their cost and responsibilities.

International travel to resume as COVID-19 restrictions ease

The Department for Transport has confirmed that international leisure travel will re-commence from 17 May 2021, under a traffic light system as the COVID-19 restrictions ease further. This means that 12 countries have currently been added to the "green list" removing the need for arrivals from those countries to quarantine. However, this list will constantly be under review and no doubt we will see countries being added and removed from the list weekly, if not daily. All travellers for business will still be required to take a pre-departure test up to 72 hours before their return to England, complete a passenger locator form and take another PCR test on or before the second day after their arrival.

Companies are advised to keep up to date on the latest "green list" to understand how, if at all, quarantine will impact on the traveller's arrival to England.

Deadline for EU Settlement Scheme applications looms

EU citizens (and EEA and Swiss citizens) who were resident in the UK on or before 31 December 2020 have until 30 June 2021 to apply to the EU Settlement Scheme. If the EU citizen has been in the UK for less than 5 continuous years, they will be given pre-settled status and those who have been in the UK for a continuous 5-year period will be granted settled status. In most cases, this is the absolute deadline.

However, the latest Home Office caseworker guidance confirms that there will be discretion for late applications in several circumstances. This guidance has been long awaited as it was expected to take a very hard line. Yet, the overarching concept throughout the guidance is that the decision maker must take a "flexible and pragmatic" approach to considering late applications within reasonable grounds.

When you look into this further, there is a non-exhaustive list of examples in the guidance for where a late application to the EU Settlement Scheme should be accepted and the Home Office suggest they will work with applicants to ensure those who have missed the deadline for reasonable grounds will not be disadvantaged. Reasonable grounds for a late application will include for example: vulnerable applicants, applicants who suffered serious illness or had significant medical treatments leading up to 30 June 2021 and applicants who were in a controlling or abusive relationship. Each case is fact sensitive and individuals will need to provide evidence to demonstrate why they couldn't meet the deadline.

The guidance goes further and also extends reasonable grounds to "other compelling reasons" such as an applicant being unaware of the deadline due to no internet access, limited English language skills, living overseas or someone who held a biometric residence card pre 31 December 2020 and did not realise they also had to make an application to retain their rights. The list of reasonable grounds is much broader than expected, and as outlined above, is non-exhaustive. Whilst this is welcome news for applicants, the guidance suggests that this current approach is likely to be time limited and may well be subject to change in the future. It remains recommended that employers signpost the EU Settlement Scheme to their workforce, making clear the deadline of 30 June 2021 and encouraging them to apply to prevent a late application.

New plan published for Immigration and Border Control

On 24 May 2021, the Home Secretary published details of her intended immigration plan for 2021 and 2022, which achieved the main headline of wanting a 'digital by default' system for migrants by the end of 2024. The plan sets out information already released to the public as well as incorporating new aspects and specific timings. The most noteworthy new announcements are:

• By Summer 2021, all Border Force staff will have the ability, if required, to check whether an individual has applied for, or been granted status under the EUSS, should they need to do so.
• During 2021, steps will be taken to assist sponsors such as (1) establishing a service to lend support to small and micro businesses, (2) reviewing fees for those who use the sponsorship system and (3) introducing a new Skilled Worker Eligibility checking tool. Such a tool will be very welcome to most sponsors.
• A roadmap will be published later in 2021 setting out further changes to assist sponsors. These will include providing a dashboard to help sponsors manage their sponsored workers and see feedback on their visa applications, introducing trust ratings for sponsors based on a track record of compliance to allow a differentiated approach to sponsor and reporting duties and automatically digitally inviting sponsored applicants to make visa applications and confirm information provided by a sponsor. All of which are positive steps to reduce the burden and administration for sponsors.
• Reducing the need and, eventually, phasing out the requirement to attend visa application centres. This is due to happen in a phased way starting with the introduction of a Chip Checker application process for EU applicants. Biometric appointments are proving increasingly hard to obtain, especially quickly, so this is another positive step forward.
• In Spring 2022, a new, unsponsored 'points-based' route will be introduced for the very highly skilled and academically elite and a new, sponsored 'Global Business Mobility' route will be launched to cover Intra-Company transfers, contractual service suppliers and independent professionals and widening the scope for employees of an overseas business assigned to establish a branch of subsidiary in the UK.

To read the full paper, please click the button below.

New Fast-Track Global Talent Visa

On 5 May 2021, the Home office announced that a new fast track immigration route was being released for people who have won top awards in the fields of science, humanities, engineering, the arts, digital technology, dance, fashion, architecture and social sciences. Winners of prestigious awards such as the Nobel Prize, Oscars and Golden Globes will be able to apply for a Fast-Track Global Talent visa without needing to seek endorsement first. Generally, those applying under the Global Talent visa need to first receive an endorsement from one of 6 approved endorsing bodies. This latest development from the Home Office streamlines and quickens the process for those with such a prestigious award.