Key immigration law developments – August / September 2023

A few key developments have affected business immigration over the last few months. We provide a summary below.

Immigration fee increases

The government has confirmed that mandatory immigration/Home Office fees will rise significantly, placing an additional burden on employer sponsors as well as individuals who apply to come to live and work in the UK.  Increases are in the region of 15%, with the total increases and commencement date yet to be confirmed. Current anticipated rates include:

• The Immigration Health Surcharge will increase from £624 to £1,035 per person per year, and to £776 per year for students and those under 18.

• Fees for Skilled Workers or those on a Global Mobility visa who make an application from outside of the UK valid for up to 3 years will increase to £719 per applicant and £551 for shortage occupation roles (these include some in the health and care as well as the IT sectors).

• Fees for Skilled Workers or those on a Global Mobility visa valid for between 3 and 5 years will increase to £1,421 per applicant for those making an application from outside of the UK.

• Fees for those making an application from inside the UK will increase to £1,637 (for 3-5 years) per applicant.

• Certificate of Sponsorship fees will likely increase from £199 per applicant to an estimated fee of £239.

• Fees for Temporary Workers, including interns, creative workers and Youth Mobility Scheme workers, will increase to £298 per applicant.

• Visa fees for visitors will rise by 15%, to between £115 and £963 per applicant, depending on how long the visitor visa is issued for (between 6 months and 10 years).

• Settlement (permanent residence or indefinite leave to remain) application fees are expected to rise 20% to around £2,885 per applicant.

Practical steps to take now

Given the fee increases, which may well happen in the autumn, it is important that employers and individuals take steps now to minimise the impact. Relevant points to consider include the following:

• Anyone planning to apply for a UK visa in the coming months should apply now to take advantage of existing lower fees.  A worker applying for a 5-year visa will save just over £2,000 in the health surcharge alone if they are able to apply before the increase takes effect.

• Employers should consider the higher recruitment costs moving forward. One option is to consider implementing clawback agreements, which require a worker to repay a portion of the visa fees incurred by the employer if they leave employment within a set period after the visa has been issued.  Note that only agreements that are “reasonable” will be enforceable. In contrast, those who impose a penalty on the worker would not be.  Reasonableness is likely to depend on the salary and seniority of the employee, and the overall cost to the employer. Such agreements usually include a mechanism providing for the amount repayable to decrease proportionately over time.

• Even if an employer does not offer assistance with any individual visa costs, it may choose to  offer extra support, for example through salary advances or employee loans, which would need to be carefully documented.

• Employers should consider business continuity and right-to -work compliance issues where an existing employee is unable to extend their immigration permission due to unaffordability.

• If the impact on the business is considerable, it may be necessary to consider allowing vacancies to remain unfilled, or deferring or withdrawing offers made to employees who would be moving to the UK from abroad. Similarly, the financial implications of employees working abroad for long periods and then seeking to return to the UK should also be assessed.

Increase in civil penalties for employing illegal workers

Last month, the Home Secretary announced significant increases in civil penalties for employers who hire illegal migrants, marking the most extensive overhaul of such penalties since 2014. With effect from 2024, the civil fines for employing illegal workers will be as follows:

• A fine of £45,000 if no previous illegal workers have been identified within the past three years (an increase from £15,000).
• A fine of £60,000 per illegal worker if illegal workers have been identified within the previous three years (an increase from £20,000).

Employers should therefore ensure they are up to speed with the latest right to work requirements to avoid enforcement action being taken against them. The significant penalty increases for employing illegal workers reinforce the need for a robust internal system for conducting right-to-work checks in accordance with up-to-date Home Office guidance. For sponsor licence holders, this is particularly important, given their enhanced compliance obligations and the possibility for a Home Office audit to be conducted at any time, either announced or unannounced.

Changes to travel to and from the EU

UK employers should remain aware of current and pending border changes which will affect travel to the UK and the European Union.

British travellers to the EU

Following the UK’s departure from the EU, all British citizens arriving in an EU member state (or the EEA and Switzerland) do not have a right to  free movement. Should they be going there to work, local visa requirements in the destination EU country will apply.  British citizens visiting the EU can do so visa free, but they will be treated as third-country nationals, who will be expected to comply with immigration requirements allowing them to reside or work there.

The EU plans to launch the European Travel Information and Authorisation System (ETIAS) during the course of 2024.  This will require British travellers to the EU (including tourists) to apply online and pay a fee to allow entry prior to travel. The system will operate similarly to ESTA, the US visa waiver scheme. 

The new ETIAS system will operate by screening travellers for security purposes before they are permitted to travel.  After completing an online application form, the system will conduct checks against EU information systems for borders and security and, in most cases, issue a travel authorisation within minutes. In limited cases where further checks are required, the travel authorisation could take up to 30 days to be issued.

The ETIAS travel authorisation will be a mandatory pre-condition for entry to the Schengen States and will be checked together with relevant travel documents by the border guards when crossing the EU border.

Importantly, a British citizen’s passport must be valid for at least 6 months before its expiration date. One practical difficulty with this requirement is that if the passport holder has renewed their passport prior to expiry of the previous one, extra months may have been added to the expiry date. However,  any extra months beyond 10 years may not count towards the 6 month period required for entry to certain countries. This requirement is easy to forget or overlook, particularly as it can take some considerable time to renew or replace a British passport.

Business travel to the EU

If a British citizen needs to travel to the EU as a business visitor, it is important to first check the relevant local rules of the country of travel. Provided they do not intend to work in the EU, they can enter as a business visitor under the terms of the EU-UK Trade and Cooperation Agreement (TCA), which sets out a list of agreed short-term business visitor activities which are permitted. These include:

• Attending meetings or conferences or engaging in consultations with business associates.

• Technical, scientific and statistical researchers conducting independent research.

• Market researchers and analysts conducting research or analysis.

• Attending or providing training seminars to receive training in techniques and work practices.

• Attending trade fairs and exhibitions for the purpose of promoting the company or its products or services.

• Management and supervisory personnel and financial services personnel (including insurers, bankers and investment brokers) engaging in a commercial transaction.

• Representatives of a supplier of services or goods taking orders, negotiating sales, and entering into agreements to sell. However, short-term business visitors cannot engage in making direct sales to the general public.

The specific permitted activities may vary according to the relevant country (as some have deviated from the TCA in practice). Therefore, employers and travelling business visitors are advised to still check before they travel that their particular activity will be permitted and that there is no need for a work permit. Generally, a British citizen may stay in the EU for up to 90 days in any one six-month period. A longer period would require the appropriate permission to be obtained before travel.

EU travellers to the UK

The UK is working towards Electronic Travel Authorisations for non-UK visitors, which are expected to take effect during 2024. The intention is to have a fully digital immigration system, eliminating the need to provide physical documents that evidence immigration status, such as passport vignettes and biometric cards.

There are plans to enhance watch-listing and move towards greater automation for passengers on arrival, with a view to improving security and the operational process at the border.

Changes to the EU Settlement Scheme

Significant changes have recently been introduced to the EU Settlement Scheme (EUSS), as summarised below:

Automatic extension of Pre-Settled Status

From September onwards, individuals holding Pre-Settled Status under the EUSS will have their status automatically extended by two years if they have not already obtained Settled Status. In contrast to the previous system, individuals with Pre-Settled Status will also not need to apply for Settled Status following 5 years in the UK and will be notified of the extension directly.

So, provided the Home Office can verify an individual’s eligibility using digital records, they will be automatically granted Settled Status without the need to make a separate application.

Immigration route closures

 Since 8 August 2023, new applications under the EUSS for the “family member of a qualifying British citizen” (Surinder Singh cases) and “primary carer of a British citizen” (Zambrano cases) are no longer accepted.

These routes will remain open for those already on them or have pending applications, administrative reviews, or appeals, but no new applications will be accepted moving forward.