Member Article

Led by Legal Director of Immigration, Rachel Harvey and Employment Partner, Emma Morgan, this webinar provided an insight into how best to remain compliant with Employment and Immigration requirements.

Guidelines in this area are frequently subject to change and it is therefore crucial that employers remain aware of the rules and their potential wider implications. The webinar looked at how employers can ensure that they act in line with regulation and remain compliant throughout the hiring process and beyond. The key themes discussed were the costs and considerations of sponsorship, Clawback Agreements, ‘Right to Work’ checks and factors to consider when employing students and graduates. The session also considered routes to entry that are due to be introduced in the coming months.

Remaining compliant

Employers should ensure that prior to employment they complete the proper ‘Right to Work’ checks confirming the employee’s identity and immigration status. Contractual provisions warranting the employee’s entitlement to work in the UK are also advised, as are follow up checks relating to visa expiry dates and potential extensions. It should be noted that the Home Office directs employers to use HR systems to record visa end dates as opposed to placing reminders in Outlook calendars. Post-employment, employers should report a dismissal or resignation within 10 days. If employers fail to remain compliant then sanctions can be imposed such as disqualification as well as civil and criminal penalties.

The cost and considerations of sponsorship

Sponsoring employers should also be aware that an application for a Skilled Worker applying from outside of the UK can total a minimum of £9,500. This is due to numerous additional costs such as English language tests, processing fees and health surcharges. Other relevant considerations relate to both the specific role and the individual employee. For example, the level of “skill” required for the role and whether the employee has dependants that they intend to bring with them to the UK.

Clawback Agreements

With the rise in sponsorship fees, many firms are opting to implement Clawback Agreements when sponsoring new hires. This allows businesses to claim back any costs paid to the personal benefit of the employee.  It should be noted that immigration skills charges cannot be recouped. The Clawback Agreement’s repayment terms could come in the form of deductions from the employee’s monthly salary or a sliding scale. I.E if the employee leaves within 12 months then they are required to pay back 100% of the costs and if they leave within 13 – 18 months they will pay back 75% of the costs and so on.

Digital ‘Right to Work’ checks

The pandemic has accelerated the introduction of online ‘Right to Work’ checks and the return of physical checks has been postponed until 5 April 2022. The government is also now undertaking a review that aims to provide a permanent digital solution and it is thought that an ‘app’ or similar could be introduced to formalise right to work checks. Completing checks as soon as reasonably practicable can avoid any issues or delays. If an employee loses their right to work then an investigation, hearing and appeal process should be carried out.

Students and Graduates

There are several factors which impact upon students’ eligibility to work in the UK and how many hours they are permitted to perform. Factors include the level of qualification being undertaken and whether the work is carried out during term time. Due to this, a letter must be obtained from the university to confirm course dates. A new graduate visa was also implemented on 1 July 2021 which will provide employers with an alternative to the skilled worker route. Graduate visas will be valid for two years (or three years for those with a PhD) and there are no minimum skill level or salary requirements. It is not possible to extend these visas and they can only be used once.

Watch this space...

The UK government has announced their intentions to introduce ‘High Potential Individual’ and ‘Scale-up’ routes to entry. The High Potential Individual route will allow successful graduates to enter the UK without a job offer provided they have graduated from a ‘top global university’. A list of qualifying institutions has not yet been published. The ‘Scale-up’ route will be open to those who have a job offer from a ‘scale-up’ at the required level. A business will qualify as a ‘scale-up’ if they can demonstrate an annual average revenue or employment growth rate of at least 20% over a three-year period and that they had a minimum of ten employees at the start of the period.

Changes are also due to be made to rebrand the T5 (Temporary Worker) Youth Mobility scheme to the ‘Youth Mobility Scheme’ and it will expand to include new arrangements with both Iceland and India. Additionally, a new International Sportsperson route will replace the T2 and T5 Temporary Worker routes making it more straightforward for professional sporting workers to gain access to the UK. The T5 label is also due to be removed from any remaining temporary routes and a dedicated Temporary Worker – Creative Worker visa category will be created.

Further details regarding our Immigration webinars can be located on our Brexit Insights hub where you will find a series of sessions covering a range of topics within both Immigration and Employment law. For further advice, please get in touch with our Immigration team who will be happy to assist with your query.