May’s announcement that the Immigration Act 2014 (IA 2014) would be making significant changes to the UK’s immigration regime has to date had little impact on employers. However as of 28th July 2014, many of the IA 2014’s provisions have now come into force – what does this mean for you?
» Biometric information (such as fingerprints) is routinely required when an employee makes a visa application. The IA 2014 has extended the type of visas for which biometric information must be supplied and has extended the category of individuals who must provide this to include family members of non-EEA nationals. The definition of biometric information has been amended also.
» Changes to preventing illegal working were brought in to effect on 16th May 2014 by separate legislation to the IA 2014. Crucially, this increased the fine an employer could face if found to be employing an individual without the right to work in the UK (from £10,000 to £20,000 per employee). The IA 2014 now limits the right of appeal an employer has against such a penalty and in cases of non-payment, allows the penalty to be enforced as if it were a Court Order.
» The IA 2014 provides statutory ‘guidance’ for Court and Tribunal Judges to consider when determining whether any decision made under the Immigration Rules breaches an individual’s right to respect for private and family life. This guidance gives little weight to any private life or relationship established when the individual is in the UK unlawfully or when an individual’s immigration status is precarious. Judges should however consider that it is in the public interest to maintain effective immigration control, for individuals entering the UK to be able to speak English and be financially independent. This lessens the burden on taxpayers and allows the individual to integrate effectively.
What does this mean?
» The provision of additional biometric information may cause application processing times to slow down. Employers should check gov.uk which details current processing times for the different types of application in advance to ensure that a prospective employee’s visa is likely to be processed in time for them to commence work. Applicants should also be reminded of the likely requirement to provide biometric data after submitting their visa application. As this must be done in their country of residence, they should bear this in mind when planning overseas travel around this time.
» Where an employer is in receipt of a civil penalty notice the timescales for payment must be carefully noted to avoid a bailiff subsequently attending and if an appeal is to be made, you should seek advice regarding the process and timescale for doing so.
» The ‘guidance’ contained within the IA 2014 affirms that overturning any unfavorable immigration decision is difficult. Careful consideration should be given to whether the decision made is in the public interest before seeking to challenge this.
What else is on the horizon
The most important change for employers introduced by the IA 2014 is yet to come into force.
This is the new appeals regime which will introduce a significant reduction in the number of grounds on which a decision can be appealed. A right of appeal will only be available where an asylum or human rights application has been made and in all other applications, the appeals process will be replaced with administrative review. This will involve Home Office staff, rather than an independent Tribunal, reviewing decisions made by their Home Office colleagues.
There is no date for when this change will come into effect however it is expected that it could be as soon as October 2014.
This article has been drafted on HR Legal Service’s behalf by Ward Hadaway Law Firm. Ward Hadaway Law Firm is one of HR Legal Service’s strategic legal advisory partners and provides certain services to our customers through a range of different Legal and HR support services offered by ourselves to the corporate market.
The content of this article does not constitute legal advice and it should not be relied upon. Specific legal advice may be required to address your specific circumstance.