The General Election 12 December 2019: results of the election

In light of the recent results of the Election, we have summarised below the Conservatives proposals. They have strongly committed to ending free movement and to "get Brexit done", moving to a more Australian-style points based immigration system with fast-track entry visa for doctors, nurses and healthcare professionals.

Conservatives

"Get Brexit done"

Effecting Brexit has been at the forefront of the Conservatives' election campaign. There is a firm commitment to take the UK out of the EU as soon as possible. Provided that there is a deal, the EU Settlement Scheme would continue to operate for EEA nationals who are currently here and who arrive before 30 December 2020.

Aim to end free movement by 1 January 2021

Theresa May's government set out proposals for an overhaul of the immigration system in a White Paper in December 2018. It effectively brings the system that is already in place for non-EEA nationals into place for all migrants, with a few key changes, including scrapping the "resident labour market test".

Current migrants

The Conservatives have pledged that both EU and non-EU migrants with settled or –pre- settled status will remain the same until January 2021, including a five-year wait to obtain welfare payments and a surcharge for access to health services.

Points based system proposals

Boris Johnson has stated that low-skilled migrants will not be able to settle permanently in the UK under his post-Brexit immigration plans.

An Australian-style points based immigration system has been proposed where migrants would score points for various attributes, for example, their education, occupation and age where visas are then allocated on the scoring of a certain number of points. In theory, we do already have a points-based system, but Boris Johnson's proposals are for a more traditional system with less discretion on the part of the Home Office.

It is proposed that workers would be split into three categories:

  • those defined as "exceptional" talent or contribution - automatic right of entry to the UK with no cap on numbers;
  • skilled workers under the points-based system and have a confirmed job offer will be allowed entry to the UK;
  • unskilled workers in sectors such as agriculture and construction will be allowed entry into the UK on time-limited visas, but with no ongoing ability to obtain permanent residence.

The Conservatives are also proposing a new digital immigration status to be put in place by 2022 which will monitor the impact of migration on specific communities in terms of pressure on local services. They believe in turn this will enable screening of all prospective migrants on the basis of previous criminal convictions and bar those from residing in the UK with serious criminal convictions.

The proposals show a much more stringent approach to immigration with a keen focus on securing a deal and to "get Brexit done".

Automatic right to work for non-EEA nationals married to EEA nationals

Badara v Pulse Healthcare Limited UKEAT/0210/18 > 

The EAT considered whether an employer was reasonable in requiring an employee, who was a non-EEA national married to an EEA national, to provide evidence of his right to work in the UK.

The right to work regime

Employers must conduct right to work checks to avoid penalties from the Home Office for employing someone who does not have the right to work in the UK. It is unlawful to employ an illegal worker and employers can face severe civil and criminal penalties for doing so. Undertaking right to work checks correctly (checking original documents or obtaining a positive verification notice of their immigration status from the Home Office in accordance with Home Office guidance) provides employers with a "statutory excuse" from penalties, even if the worker was in fact found to be working in the UK illegally.

Non-EEA nationals married to EEA nationals

At present, non-EEA nationals married to EEA nationals who are exercising their rights of free movement (living and working in the UK as an EEA national) are also entitled to benefit from free movement to live and work in the UK. This is an automatic right that does not require any application or documentation to evidence their status. They do have the option to apply for an EEA Family Permit or a Residence Card, but this is not a requirement.

Case law has established that because non-EEA nationals married to EEA nationals have an automatic right to work in the UK, and do not need to provide any additional documentation for the purposes of right to work checks.

Badara v Pulse Healthcare Limited:

Background

Mr Badara, a Nigerian national, was married to an EEA national and so had the right to work in the UK automatically. Pulse Healthcare Limited (Pulse) engaged Mr Badara under a contract for services and contractually required him to: (i) provide evidence of his right to work in the UK; and (ii) keep Pulse updated if his right to work in the UK changed.

Mr Badara provided Pulse with a copy of his UK residence card, confirming his immigration status. When Mr Badara's residence card expired two years later, Pulse asked Mr Badara to apply for a new card, which Mr Badara did. However, Pulse withheld work and pay from Mr Badara from the day after his original card had expired, believing that he no longer had a right to work in the UK. Pulse then contacted the Home Office seeking to obtain a verification notice that Mr Badara had the right to work and it came back as negative on several occasions. This was due to Home Office errors, as in fact he did have the right to work.

Two months after not receiving any pay, Mr Badara brought various employment tribunal claims. Nine months after his original card expired, Mr Badara obtained a new residence card, confirming his right to work in the UK. However, two weeks after receiving his new card, the Employment Tribunal dismissed Mr Badara's claims. Pulse then dismissed Mr Badara.

Employment Tribunal decision

The Tribunal found that Mr Badara was in reality an employee, applying the tests for an employment relationship. He was entitled to compensation for unlawful deduction of wages but only for the period after his original residence card had expired and up until Pulse received a negative verification notice from the Home Office. From this point, Pulse could not be held responsible for the Home Office's error in providing them with a negative verification notice.

The Tribunal also found that there was no discrimination (direct or indirect) against Mr Badara, on the basis that Pulse's actions were objectively justified as it was seeking to comply with the Home Office's immigration control requirements.

Employment Appeal Tribunal (EAT) Decision

The EAT allowed the appeal, and found that Mr Badara had a special status as the spouse of an EEA national and there was no requirement for him to obtain any form of Home Office documentation to evidence his right to work. The EAT confirmed that Mr Badara had the right to work throughout the entire period, given his automatic status. It found that Pulse should not have required any updated evidence for spouses of EEA nationals and that they should be treated in the same way as EEA nationals, not requiring evidence of their right to work as an employer could for those who need permission to enter or remain in the UK.

The EAT remitted both Mr Badara's claims for unlawful deduction from wages and for indirect discrimination to the Tribunal to consider.

Comments: what does this case mean for employers?

This case put Pulse in a very difficult position, particularly given that the Home Office had provided negative verification notices, on which ordinarily employers would be able to rely. This case is helpful in illustrating some practical tips when conducting right to work checks:

Don't always rely on the outcome of Home Office ECS checks!

This case was complicated as Pulse had received multiple incorrect negative verification notices from the Home Office's Employer Checking Service on multiple occasions. Where the outcome of the check does not seem to be as expected, we recommend seeking legal advice or contacting the Home Office's Prevention of Illegal Working Helpline for further assistance.

EEA nationals and their families usually have an automatic right to work in the UK

Where an EEA national or their family member has an automatic right to work in the UK, this is not something that they are obliged to evidence. If they do have a family permit or residence card then employers do not need to conduct repeat checks.

However, employers should also consider the impact of Brexit, as it is likely that free movement will end and EU migrant will potentially become subject to the right to work regime in the future.

Be mindful of changes in immigration status

Mr Badara was still married, but had separated from his wife. If his marriage had ended, he would have lost his rights as a spouse of an EEA national and he may no longer have had the right to work.

Expansion of shortage occupation list (SOL)

Following the Migration Advisory Committees recommendation to significantly expand the SOL, this list has now been expanded to include more job roles, particularly in the technology sector, including:

  • programmers and software development professionals;
  • IT business analysts;
  • architects; and systems designers;

Other inclusions: engineering, health occupations and sciences.

What is the SOL?

The Tier 2 SOL is a list of occupations recognised by MAC as being in national shortage, which they assess would be sensible to fill, in part, through non-EEA migration.

When reviewing the SOL, the MAC considers a range of factors including whether the role is in national shortage and whether it is sensible to fill with migrant workers.

What does this mean for employers?

For Tier 2 (General) category jobs that appear on the SOL list, these do not need to be advertised for 28 days in line with the Resident Labour Market Test (RLMT). This means they will benefit from prioritisation in the monthly restricted Certificate of Sponsorship panels. This will be relevant when the monthly limit on a Tier 2 restricted CoS is reached and only those roles scoring the most points are granted a CoS.

This is good news for many employers who employ migrants in roles within tech who can now avoid a 28-day delay in the RLMT and rely on prioritisation.