Business immigration has become something of a hot topic in recent years, often making the headlines as businesses have grappled with various skills shortages and economic challenges. It remains a complex and fluctuating area, and 2024 looks set to be no different.
Whilst not all businesses may actively recruit overseas workers, all businesses are nonetheless required to engage with the Home Office’s illegal working regime, and failure to do so can have catastrophic consequences.
Right to work checks
All employers in the UK have a responsibility to prevent illegal working. This is done by conducting right to work checks before employing someone, to ensure that the individual is not disqualified from carrying out the work by reason of their immigration status. If an individual’s right to work is time limited, follow up checks may also be required.
Employers must do one of the below before the employee starts employment as a right to work check:
- a manual right to work check;
- a Home Office online right to work check (only available for non-British and non-Irish citizens at the moment); or
- a right to work check using Identity Verification Technology via the services of an Identity Service Provider (only currently available for British and Irish citizens).
Importance
If a business conducts one of the above right to work checks and does so correctly, this will act as a defence against a civil penalty (known as “the statutory excuse”) in the event that an employee is found to be working illegally. If someone you employ does not have the right to work and you did not do the correct checks, or you did not do them properly, you may have to pay a significant fine.
For a number of years, the civil penalty has sat at a maximum but nonetheless eye-watering £20,000 per illegal worker. From early 2024, this will be tripled to the mammoth sum of £60,000 per illegal worker.
In addition, employers could face criminal penalties such as up to 5 years in jail and an unlimited fine if found guilty of employing someone they knew or had ‘reasonable cause to believe’ they did not have the right to work in the UK.
It is therefore of the utmost importance that employers rigorously carry out the correct right to work checks. Now more so than ever, the potential penalties will be highly detrimental to businesses, not only financially but also reputationally. For those who do actively recruit from overseas, it is also likely to result in the loss of significant investment and time, as well as impacting on other employees and areas of the business if a sponsor licence is revoked as a result of illegal working.
Upcoming changes
The Home Secretary has announced a series of restrictions aimed at reducing legal migration which are expected to come into force in April 2024.
These are:
- the salary threshold for Skilled Workers will increase from the current £26,200 to £38,700, which is an increase of almost 50%;
- although employers who rely upon health and care visas will escape the above change, employees who come into the UK as a care worker under this route will no longer be able to bring their families with them;
- the Shortage Occupation List, along with its 20% salary reduction, will be abolished, to be replaced by a smaller list of occupations with a discounted general salary threshold;
- the salary threshold for family visas will also be increased significantly. We don’t yet know if this will be accompanied by an additional increase to the income requirements for sponsoring children;
- the Immigration Health Surcharge, payable by visa holders to grant access to the NHS, will increase from £624 to £1,035 for each year of their visa; and
- the Graduate visa route is to be reviewed.
These changes come as a worrying development for many businesses still facing and adjusting to skills shortages in the wake of Brexit, many of whom welcomed the reduction in salary threshold which accompanied the introduction of the new points-based system in 2021.
However, amongst the new stricter series of restrictions to legal migrants, there is also a silver lining for businesses. The Home Office recently published updates to the Immigration Rules which expands the range of business activities visitors are allowed to do in the UK from 31 January 2024.
To find out more, join us for a lunchtime webinar on 11 January 2024 for further discussion on the anticipated changes and what businesses can be doing to prepare. Click here for more information and to register.
If you have any queries or would like to discuss these issues further please contact our business immigration experts Suzanne Treen and Anna-Elise Harvey