Wolfsdorf Rosenthal LLP

Updates: UNITED KINGDOM


UNITED KINGDOM

Several developments have been announced.

Hot Topics for 2016

A number of important immigration-related issues are coming up in 2016 for the United Kingdom (UK). There are changes to the Registered Travellers Scheme. Also, on January 19, 2016, the Migration Advisory Committee (MAC) published a widely anticipated Tier 2 review, “Balancing Migration Selectivity, Investment in Skills and Impacts on UK Productivity and Competitiveness.” Following the publication of the MAC report on the Tier 1 (Entrepreneur) route, it is very likely that significant changes will be introduced to this route in April 2016. The Immigration Bill is likely to pass into law in April. Additionally, new fees are proposed to take force in or after April. 

Highlights of these and other changes in 2016 are summarized below.

Changes to the Registered Travellers Scheme

The Registered Travellers Scheme has been opened up to a greater number of applicants. Before it was only available to applicants from Australia, Canada, Japan, New Zealand, and the United States.  Now it has been opened up to nationals from Hong Kong (for those with a Special Administrative Region [SAR] passport), South Korea, Singapore, and Taiwan (the passport must have the personal ID number on the photo page). The categories of applicant include all visa holders with the exception of Tier 5 (Sporting & Creative Concessions), EEA family permit holders, and those with discretionary leave outside of the immigration rules.

The other change is that it is now available to visitors who have visited the UK at least four times in the previous 24 months (formerly this was 12 months).

The number of ports offering the scheme has also expanded and includes:

  • Gatwick
  • Heathrow
  • Birmingham
  • East Midlands
  • Brussels, Lille, and Paris (rail terminals)
  • Manchester
  • Edinburgh
  • Glasgow
  • London City
  • Stansted
  • Luton

Applicants need to apply online at https://www.gov.uk/registered-traveller. The fee is £70 for a 12-month membership. If a new passport is obtained once membership has been secured, the applicant must pay £20 for passport details to be updated on the Home Office system.

Proposed Fee Changes 

On January 11, 2016, the UK government announced proposed changes to the fees for visas, immigration and nationality applications, and associated premium services that will take effect following legislation to be set forth before Parliament in April 2016.

The government proposes to set maximum levels on the amounts for broad categories of fees that can be charged by the Home Office over the next four years. There are no current plans to raise fees to the maximum levels. However, the stated goal is to make the border, immigration, and citizenship system self-funded by those who use it by 2019-2020.

Changes include:

  • A 2% increase for visit, study, and work visas:
  • Entry clearance fees for Tier 2 (Intra-Company Transfer) visas in the Short-Term Staff, Sport, and Minister of Religion subcategories will increase from £445 to £454.
  • Entry clearance fees for Tier 2 (General and Intra-Company Transfer) visas up to 3 years will increase from £564 to £575.
  • Entry clearance fees for Tier 2 (General and Intra-Company Transfer) visas greater than three years will increase from £1,128 to £1,151.
  • In-country leave to remain fees for Tier 2 (Intra-Company Transfer) visas in the Short-Term Staff, Sport, and Minister of Religion subcategories will increase from £445 to £454.
  • In-country leave to remain fees for Tier 2 (General, Intra-Company Transfer, Sport, and Minister of Religion) visas up to three years  will increase from £651 to £664. 
  • In-country leave to remain fees for Tier 2 (General and Intra-Company Transfer) visas greater than three years will increase from £1,302 to £1,328. 
  • Fees for dependents will be charged in line with the main applicants.
  • A proposed maximum fee for all Tier 2 applications of £1,500. As stated above, however, there are no immediate plans to increase the fees to this amount.
  • In-person expedited processing fee for in-country applications will increase from £300 to £400.
  • Expedited processing of applications not made in person will increase from £300 to £375.
  • A 25% increase in settlement fees for 2016-17. For main applicants and each dependent applying for settlement, fees will rise from £1,500 to £1,875. The proposed maximum level of fees for this category is £3,250 per applicant.
  • A 25% increase in nationality fees.
  • No change in fees for sponsor license applications, renewals, or maintaining the license.
  • The new fees for applications can be found in the fees table for 2016-17 at https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/491069/Fees_Table_-_table_with_further_detail_of_indicative_fees_for_2016-17.pdf.

    UK Immigration Bill 2015 and Anticipated Changes in 2016

    If enacted in its current form, the provisions in the Immigration Bill relating to unauthorized work will require ever more vigilance on the part of sponsors and migrants to avoid penalties, including severe criminal sanctions.

    The Bill proposes the creation of a new criminal offense of illegal working, which will affect migrants in circumstances where they are either working in the UK without permission, or continue to do so once either their permission is invalid or expires, or they are subject to a condition preventing them from undertaking the work they are doing. In England and Wales, an offense will be punishable by imprisonment for up to 51 weeks, a fine, or both, while in Scotland and Northern Ireland, offenders may face imprisonment for a term of up to six months and/or a fine. A migrant convicted of this offense may also have his or her earnings seized as the proceeds of a crime.

    The Bill also amends the existing offense of employing an illegal worker. Previously, an employer had to have known that the migrant did not have work authorization to be guilty of the offense. Under the new provisions, the offense may now be committed by an employer who either knows or has reasonable cause to believe that a person is working without leave (permission). The maximum penalty will be raised to five years’ imprisonment (currently two).

    An immigration officer may also arrest, without a warrant, a person whom he or she has reasonable grounds for suspecting has either committed or is attempting to commit an immigration offense.

    A further new provision will give authority to a Chief Immigration Officer to issue a notice to close business premises for up to 24 hours (up to 48 hours if issued by an Immigration Inspector) if he or she is reasonably satisfied that an illegal working offense is being committed. This is subject to the condition that the employer either has an unspent conviction of employing unauthorized workers, has received a civil penalty for employing unauthorized workers within the past three years, or has failed to pay a civil penalty that is due.

    The Bill is moving through all the parliamentary stages at a rapid pace. As of January 20, the bill was in the committee stage in the House of Lords. Although amendments have been proposed, none has been successful. Further provisions that will restrict migrants’ access to services, including holding a bank account, driving, and renting property, could lead to a dire outcome for some migrants through no fault of their own, perhaps because they followed an erroneous decision by the Home Office or because the Home Office’s records were not up to date. Migrants with full working rights could find themselves dismissed from employment if the Home Office’s records are not up to date or inaccurate, and as a result they could be unable to rent, maintain a bank account, or drive in the UK. Because appeal rights will also be removed for all except asylum cases, migrants will not be able to remain in the UK to challenge erroneous decisions.

    MAC Tier 2 Review

    The Immigration Bill also includes a provision for the Home Office to levy an Immigration Skills Charge against employers of sponsored migrants. As noted above, the MAC recently published its widely anticipated Tier 2 review.

    In its report, the MAC strongly supported an Immigration Skills Charge (ISC) of £1,000 per year for each Tier 2 migrant employed. As the report explained, this could raise £250 million per year for the funding of domestics skills training, as well as reducing employers’ reliance on overseas workers.

    The report also recommended:

    • phasing in a new minimum Tier 2 salary threshold from £20,800 to £30,000;
    • overhauling the Tier 2 (ICT) route to create a separate subcategory under Tier 2 for third party contracting with a minimum salary threshold of £41,500; 
    • not instituting an automatic removal of jobs from the shortage occupation list; and 
    • not restricting dependents’ automatic right to work.

    The full MAC report is at https://www.gov.uk/government/publications/migration-advisory-committee-mac-review-tier-2-migration.

    Also, the Department for Business Immigration and Skills has consulted on a proposal to introduce an Apprenticeship Levy, to be applied to companies across the board beginning in 2017. It may make sense for the government to consider the impact on businesses of any apprenticeship levy before making a decision on the skills charge.

    See the link below for a blog that explores the background and key aspects of the new Bill and sets out the potential economic and human impact if the Bill is passed and becomes law. The blog also includes an example illustrating how some of the proposed rules could inadvertently affect all migrants and their families, including British employees, landlords, and families. See https://www.kingsleynapley.co.uk/news-and-events/blogs/immigration-law-blog/immigration-bill-2015-the-real-impact-of-creating-a-hostile-environment. 

    Right-to-Rent Checks

    Right-to-rent checks affecting landlords in the private rental sector are being rolled out across England. The Home Office announced that all private landlords in England must now check that new tenants have the right to be in the UK before renting their property. The new scheme does not apply in Scotland, Wales, or Northern Ireland.

    This will affect anyone taking up residential tenancy for the first time, including sponsored employees. Such employees must be able to produce their original biometric residence permits as evidence of their immigration status before moving in. The new rules permit tenancy agreements to be agreed upon in advance; for example, when an employee visits the UK on a pre-assignment trip. Once the visa has been issued and evidence supplied to the landlord with respect to all proposed occupants, residence can be taken up.

    Under the new rules, landlords who fail to check a potential tenant’s “Right to Rent” will face penalties of up to £3,000 per tenant. Landlords may appoint agents to act on their behalf. Where an agent has accepted responsibility for compliance with the new scheme, the agent is the liable party in place of the landlord.

    The new law means that to avoid penalties, private landlords, including those who sublet or take in lodgers, must check the right of prospective tenants to be in the country. Landlords need to keep records of the checks they have undertaken on those people who occupy their accommodations. However, when doing so they need to be mindful of existing obligations under the Data Protection Act 1998 to protect personal data by keeping it securely and only for as long as necessary.

    Right-to-rent checks were introduced by the Immigration Act 2014. The first phase was launched in parts of the West Midlands, and this latest announcement is the next stage of the scheme’s rollout.

    The Home Office published guidance in November 2014 listing the documents that can be relied on to satisfy the Right to Rent check. However, where a potential tenant has an outstanding immigration application or appeal with the Home Office and is unable to produce evidence of his or her continuing right to remain in the UK, the landlord must conduct a check on that person’s right to rent via the Landlord Checking Service, but the landlord will first need to obtain the Home Office reference number from the prospective tenant. This service uses the same Home Office database as the Employer Checking Service, which is not always up to date.

    Tenants finding themselves in this situation could potentially be at a disadvantage when seeking a property in the private rental sector because landlords may not want to engage with the additional onerous checking procedure. Landlords and agents will need to be mindful of the equality legislation and avoid exposing themselves to a potential claim by a tenant who has been refused a tenancy.

    In the 2014 Act, these provisions were backed by a “civil penalty scheme,” whereby landlords and their agents could face fines of up to £3,000 per tenant. The Immigration Bill 2015, if approved in its current form, would move the scheme onto a new footing altogether as it would be backed by criminal sanctions. It would create four new criminal offenses, two that can be committed by landlords and two that can be committed by their agents, in situations where the landlord or agent knows or has reasonable cause to believe that the person does not have a right to rent. The offenses would carry a maximum five-year prison sentence, a fine, or both (as well as further sanctions under the Proceeds of Crime Act), and are likely to further deter landlords from renting to persons, whether British citizens or not, who cannot produce a British passport and thus prove their immigration status without the landlord’s having to resort to the Landlord Checking Service.

    Under the 2014 Act, it sufficed for a landlord to conduct periodic checks on a tenant’s immigration status. Landlords were then protected from civil penalties until the next checks were due, even if a tenant’s status changed. It is now proposed that if the Secretary of State notifies the landlord in writing that a person has no right to rent, the landlord will face a criminal penalty if he or she continues to rent to the tenant, even if the next check is not yet due. It is proposed that these measures be applied to existing tenancies.

    It remains to be seen whether the Immigration Bill 2015 is passed and becomes law, but landlords and agents should be alert to the new obligations coming into force now in the meantime.

    Rollout of Criminal Records Checks

    Criminal records checks have already been introduced for Tier 1 applications, and it is widely anticipated that these will be further rolled out in 2016 to cover Tier 2 applicants. For more on this topic, see https://www.kingsleynapley.co.uk/news-and-events/blogs/immigration-law-blog/roll-out-of-new-criminal-record-certificate-requirements-for-migrants.

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