Immigration Law Update

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1 Immigration Law Update Summer 2015 Contents: Key changes Health surcharge Marriage and civil partnership Banking Illegal working Right to rent checks Current Immigration Options Investors Entrepreneurs Employer s sponsorship Exceptional talent GSC Solicitors LLP Ely Place London EC1N 6TD T: +44 (0) F: +44 (0) E: DX 462 London/Chancery Lane

2 IMMIGRATION LAW UPDATE KEY CHANGES TO IMMIGRATION LAW WHAT IT MEANS FOR YOU AND YOUR BUSINESS Immigration and the NHS were key topics in the general election. Following its election victory, the Government is implementing further changes to immigration law aimed at reducing non-eu migration to tens of thousands and addressing illegal migration. It has accepted that any changes to EU migration would need approval from EU member states due to the fundamental principle of free movement of workers. The Government s proposals do not only affect migrant workers. They also impact on landlords, banks, employers, universities etc who are or will be required to carry out checks on migrants, failing which they will incur heavy penalties. Recent changes also impose new obligations on hospitals and marriage registrars. Details are set out below. Recent Developments Health Surcharge From 6 April 2015, non-eea nationals coming to the UK for longer than six months will be required to pay a health surcharge in advance at the same time as their visa application fee. The surcharge will also be paid by non-eea nationals already in the UK who apply to extend their stay. The health surcharge is 200 per year for non-student migrants and 150 per year for student migrants, payable up-front for the total period of the migrant s visa. This means a student on a 3 year course would have to pay 450 (i.e. 3 x 150). Any dependants of the migrant are charged at the same rate. So a family of 5 would pay 1,000 per year (5 x 200). If the migrant does not stay for the full period, then he is entitled to apply for a refund at the end of his stay. Tourists or business visitors whose visa is less than six months are not required to pay the health surcharge but will still be charged if they use the NHS during their stay. All EU migrants and visitors will be required to produce their European Health Insurance Card (EHIC) in order to avoid charges. However, emergency or urgent treatment will be provided without an upfront payment, subject to the proviso that costs will be payable.

3 Tier 2 intra-company transfer migrants are exempt from the surcharge. Other exempt categories include asylum seekers, refugees and victims of human trafficking. GP services remain free of charge for all and the same rules apply in relation to prescription charges. Comment The NHS surcharge has been implemented in response to accusations of NHS tourism. Any employer who is sponsoring a migrant worker under a tier 2 licence, may need to add the health surcharge to the cost of the visa and then ensure there are claw back provisions in the employment contract, should the employment terminate before the end of the visa. Marriage and Civil Partnership All couples in the UK who wish to marry or enter into a civil partnership are now required to give 28 days notice to the local registrar together with supporting evidence that they are UK citizens and are resident in the UK. If one of the parties is a non-eea national and subject to immigration control then the notice can be referred to the Home Office by the registrar if there is a suspicion that the marriage/civil partnership could be solely for the purposes of gaining residency in the UK i.e. a sham marriage. If the Home Office decides that an investigation should be launched, the notice period will be extended to 70 days to allow an investigation to determine whether the proposed marriage is a sham. The new powers follow on from changes introduced in July last year which widened the duty on registrars to report suspected sham marriages to the Home Office. The government has also introduced removal and re-entry ban powers for EU nationals and non-eu nationals who participate in sham marriages. Banking Banks and building societies are now required to check all new current account customers with CIFAS, a fraud prevention service. If a check determines that the person does not have permission to live in the UK, the bank or building society must refuse to open the account.

4 Employers All employers are required to carry out right to work checks on all workers whom it wishes to recruit (regardless of nationality). The Home Office has issued guidance on the documents which employers should request to verify the right to work in the UK. The maximum penalty for employing workers illegally is 20,000 (per worker). For a first breach in a three year period, the starting penalty is 15,000 per illegal worker. For a second or subsequent breach in a three year period, the starting point is 20,000. There are however mitigating factors which can reduce or avoid the penalty such as reporting suspected illegality, cooperating with any Home Office investigation and satisfying the Home Office that effective document checking practices were in place. Future Proposals Right to Rent Checks Before entering into a private rental agreement, Landlords will be required to conduct checks to establish that prospective tenants have the right to live in the UK. They will need to check the tenant s passport or biometric residence permit and retain copies for up to 1 year after the tenancy ends. Landlords who do not conduct the necessary checks and as a consequence let to illegal migrants, will be liable for a civil penalty of up to 3,000. The right to rent checks are applicable only in respect of new tenancies. Retrospective checks will not need to be carried out. A pilot test has been carried out in various areas in the UK and full right to rent checks are likely to be implemented later this year. Comment All these checks are aimed at making it harder for illegal immigrants to remain in the UK for any substantial period of time and to deter migrants from coming to the UK if they have no basis to live here. Unfortunately, they can also lead to exploitation by unscrupulous landlords and employers. Current Immigration Options For non-eu companies and individuals who wish to come to the UK to work or set up in business, the options are now limited. The Government is also imposing stringent checks and will refuse applications which do not comply with or satisfy the requirements.

5 The current options are: investors, entrepreneurs, employment of skilled workers sponsorship and exceptional talent. The main requirements of these options are set out below: Investors - The individual must have at least 2m (increased from 1m in November 2014) to bring to the UK of their own money and to invest 2m in UK Government Bonds or in Share Capital or Loan Capital in a UK company (but not property companies). Entrepreneurs - The individual has to have access to and invest 200k of funds into a new business or an existing UK business and meet certain criteria concerning this business. In particular, after three years the individual will need to demonstrate that the 200k was invested as originally planned and that the business has created two new full time jobs. Employment of Skilled Workers Sponsorship - Companies wanting to employ migrant workers are required to be registered with the Home Office as a licensed sponsor. They can then issue a certain number of certificates of sponsorship (formerly work permits) each year based on their applications. They also have to comply with various record-keeping requirements to retain their licence and carry out a resident labour market test (RLMT) to show there is no suitable resident worker to undertake the role. The RLMT is not required for intra-company transfers, shortage occupations and those positions for salaries of 153,500 or more. The Government has imposed an annual limit of 20,700 on the number of Tier 2 Certificates which can be issued (nationwide). The certificates are assessed on a point scoring system. More points are awarded for high salaries and shortage occupations. The minimum salary for a Tier 2 Certificate is 20,800 per year. The cap does not apply to intra company transfers rs or salaries of 153,500 or more. Exceptional Talent - This applies in very limited circumstances. The applicant has to be endorsed as an internationally recognised leader or emerging leader in the field of science, humanities, engineering, medicine, digital technology or the arts. Contact Details This update was produced by GSC s immigration team. For further information or advice, please contact: Tessa Fry Partner and head of immigration and employment James Cohen Solicitor GSC Solicitors LLP Ely Place London EC1N 6TD Tel: Disclaimer This update is intended to provide readers with information on recent legal developments. It should not be construed as legal advice or guidance on a particular matter. GSC Solicitors LLP

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