HRD Roundtable comments – 09.01.2019
Jane Amphlett, Head of Employment, introduced the session, welcoming all the guests, and introduced Antonia Torr (Head of Immigration) to start the discussion. Antonia's explained that she would look at the Immigration White Paper released in December 2018 and provide guidance on immediate concerns to employers, and then look at the longer term policy decisions. She pointed out that the deadlines for employer action would depend upon whether there was no deal, so 30 March 2019 (day 1 after leaving) would be relevant, or whether there was a deal and the implementation period would be in place, so December 2020 would be the relevant time. She first looked at the presumption of right to work for EEA nationals prior to Brexit. It was announced in the White Paper that for EEA individuals working for a UK employer prior to the relevant date, there would be no need to conduct any retrospective right to work checks, and that there would be no need to complete ongoing checks yearly. She also discussed the new digital system to conduct the right to work checks, which was meant to be easy to use, and required the individual's passport details to get a HO response confirming right to work. She commented that it was similar in operation to the existing Employer Checking Service; the fundamental difference is the new system will connect directly into a database with the relevant passport and entry conditions information. The system will be phased in so employers planning to the use the service will need to bear in mind potential delays. HK will be conducting a couple of dummy runs when the system is released to review how it works and see how easy the process is. The benefit of this new system is that a response should arrive in hours, rather than days, so employers should be able to act accordingly. It is also hoped but not guaranteed that an auto-response provided from the service will provide comfort to employers in the form of a deemed right to work until the employer is told otherwise. However, this will be only be known once the system is live. This should also allow employers to undertake the relevant checks earlier in the recruitment process; the individual can do it themselves, so it could form part of the recruitment process. In response to questions: o Antonia confirmed that there would be no cost. o The process could be used for all applicants. o The system is not live yet, the provisional date is 28 January 2019. Antonia pointed out that they would need to be careful from an employment law point of view. If the response states that the employee does not have the right to work, it could be an accidental false negative, so the employer may need to query whether the applicant / employee has other documents to confirm their status. Antonia said that draft legislation (due to come into force on 28 January 2019) will confirm that this digital check would be sufficient; while the employer would need to see the passport to confirm the individual's identity, there would be no need to see the Biometric Residence Permit once the digital check has been completed. However, employers may wish to have the additional certainty of seeing more documents. Antonia briefly mentioned the changes to the Tier 5 scheme, which are deal dependent, in that any rights for EU young people to come to the UK would need to be reciprocated, and the potential opening of a low-skilled worker scheme to allow 12 month visas with a cooling off period of a further 12 months and no rights to settlement arising (commonly known by immigration advisors as the Tier 3 scheme which has never opened). Antonia went on to talk about the changes to the Tier 2 scheme. She commented that these changes were all recommendations from the Migration Advisory Committee: o The job lists will be opened up to RQF levels 3,4 and 5 (ie from A level and above); o The removal of the cap on certificates of sponsorship;
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There will be no need to conduct the Resident Labour Market Test, which received a unanimous positive response from the attendees, with many comments about the time spent dealing with job applications from unsuitable applicants; o A greater ability to swap into Tier 2 skilled workers. Antonia commented that the Tier 2 sponsor licence was going to be based more on a riskbased approach, that the Home Office considers that employers have more to lose by way of financial sanction and reputational damage, so wants to put the burden on ensure that they are reputable and are complying with the licence conditions. However, the scheme should be simpler and cheaper to run. A question was asked about what currently show a company has reputable status. Antonia answered that it is essentially a company's interaction with government departments to show it is trading, such as HMRC records and Companies House filings. However, there is little detail about whether there will be any changes. Antonia also noted that applicants will be assessed on a similar basis, such as whether they were from low-, medium-, or high-risk jurisdictions. Antonia flagged that there could be potential discrimination claims currently, that someone could bring a claim for not being hired, because there was a perception that obtaining a visa may be difficult. A question was asked about whether there would be any issue about the continuing practice in recruiting staff of requiring applicants to show the right to work for a time period required for training; Antonia responded that there was none from an immigration point of view, but that employers will need to be aware of visa possibilities for workers under the Tier 3 and 5 schemes when the details are released. A further query was raised about whether having a right to work requirement in job adverts was discriminatory. Alex Mizzi noted that technically it was indirect discrimination. In the main case on this issue, the resident labour market test was not accepted by the tribunal as being justification for such a policy, and a justification argument based purely on cost would not succeed. If the Home Office makes the process for obtaining a licence easier and cheaper, justification may become harder to establish. Antonia flagged that with recruitment it was necessary to consider the tensions between immigration and employee law and the implication for employer procedures; she noted that Home Office guidance does not necessarily comply with the Equality and Human Rights Commission guidance. Antonia flagged that the Immigration Health Surcharge has doubled from £200 per year to £400 per year. This raised a question about who should pay for the costs of sponsorship; Antonia responded that this is usually a commercial decision between the employer and employee. If an employer is keen for the employee to join and recruits overseas a lot, an offer to pay all costs including the IHS and Tier 2 application fee can help encourage individuals, though there is scope for clawback in a contract. Other employers such as the NHS often require individual to pay all the costs, which could even include the skills charge of £1,000 per year and the certificate of sponsorship cost of £199. Antonia asked whether there were any retention concerns around Brexit. The attendees noted that retention was up, as Brexit uncertainty was seen as encouraging people to stay with known employers. Recruiters also noted that applicants' concerns about 'financial stability' of their current employers were leading to more movement to larger/more established businesses. Antonia raised the issue of the £30,000 salary threshold for Tier 2 workers proposed in the White Paper. The attendees did not consider this would harm their current Tier 2 applicants, but may be something for when the skill level is reduced. Antonia suggested that they feed any concerns on the cap or anything else to Howard Kennedy, as the firm would be responding to the proposals and those positively the Home Office do seem to be listening.
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