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Statutory Excuses: How Can An Employer Protect Themselves Against Liability For An Illegal Working Civil Penalty?
Navigating the intricacies of employment law, particularly concerning immigration, can be challenging for any employer.
However, ensuring compliance with right-to-work regulations is imperative to prevent civil penalty enforcement. This article outlines tips on how an employer can establish a statutory excuse against liability for illegal working civil penalties.
Comply With Right-To-Work Checks
- It is important for HR departments to be familiar with different types of right-to-work checks as set out by the Home Office. These checks can include a manual check, IDVT, or online. Knowing your options is imperative to maintain compliance.
- Consider utilising the IDSP (identity service providers) as this streamlined process can provide a continuous statutory excuse.
Maintain Records
- Maintain and store records of the right-to-work checks you have conducted. It is vital to retain clear copies of the documents throughout employment and two years after employment ends.
Set A Reminder And Follow Up
- If an employee holds leave with a time-limited right to work, ensure you diarise follow up checks are caried out before a statutory excuse expires. Failure to adhere to this requirement will result in liability of a civil penalty.
Maintain Your Knowledge
- Immigration rules and regulations are in a state of constant flux. It is important to keep abreast of the latest guidelines issues by the Home Office to ensure compliance.
Obtain External Support
- Experienced lawyers in Immigration & Employment law can provide tailored advice and ensure your HR departments and employees are provided with up to date training to prevent exposure to civil penalties.
- Establishing and pleading a statutory excuse against illegal working civil liabilities requires adherence to the protocols outlined above. Following the above tips employers can mitigate risks and ensure compliance with immigration laws.
The Immigration team at Quastels are highly experienced at advising on UK visa related matters. If you have any questions arising from this article, please do contact us at corporateimmigration@quastels.com
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UK Immigration Perspective on the New UK Tax Regime
Following the recent Budget announcement, the proposed and radical changes to the tax regime have sparked discourse among professionals within the private wealth space. One of the key impacts is the abolition of the non-dom tax regime, a key attraction for wealthy clients considering residency in the UK. The impact of this change could potentially shake the UK’s competitiveness as a destination for talent and wealth.
Effective from the 6 April 2025, the new tax regime will apply to new arrivals who have lived outside of the UK for a consecutive 10 tax year period. These individuals will benefit from tax relief for a four-year period, allowing them to bring wealth to the UK without incurring additional tax charges. The new regime will also apply to existing UK resident non-doms who have been in the country for four years or less.
Residency Challenges
Whilst the four-year relief period may appear manageable, it poses challenges in alignment with immigration residency requirements. For individuals intending on securing British Citizenship, a continuous UK residence of five years is typically required for settlement, followed by an additional year for citizenship eligibility. This dealignment raises concerns about the practical capability for individuals seeking citizenship under the new regime.
As the UK anticipates elections later this year, the potential for a change in government adds another layer of uncertainty. The implications of a shift in leadership on the newly proposed tax regime remain to be seen, and it underscores the complexity and challenges of the private wealth space.
Next Steps
Our advice to our clients is to consider taking pre-emptive steps to secure your residency in the UK by April 2025. If you are considering obtaining residency in the UK, our team of lawyers can provide you with a strategy together with our tax colleagues to enable you to secure temporary or permanent residency, this is particularly important if you own property in the UK.
If you or your connections require legal advice, please contact Jayesh Jethwa or fill out our enquiry form below.
Returning Resident Visa: Important Changes from October 2023
Indefinite leave to remain not granted under the EU Settlement Scheme (EUSS) will automatically lapse if the person is outside of the UK for more than two years. (Under the EUSS scheme leave will lapse after five years and four years for certain Swiss nationals).
On the 5th October 2023 the Home Office deleted the old immigration rules relating to returning residents and introduced a new Appendix Returning Resident. At first glance it appears as though the changes are merely codification of the old rules, however there are two key changes to note.
The first change is the removal of the requirement that a person must have held indefinite leave when they last exited the UK. This change is welcomed by practitioners, as it created tricky scenarios where a clients leave had lapsed and they subsequently entered the UK as a visitor. Technically, a visit under the visit visa due to a lapse in ILR meant that they would be ineligible to apply as a returning resident. In practice, this was rarely enforced by the Home Office.
New Requirements For EUSS Applicants
There is now, however, a requirement that applicants must have maintained strong ties to the UK during their absence from the UK. Previously the Immigration Rules only required a person to have strong ties to the UK without specifying that these ties must have continued whilst being abroad. It is likely that applicants applying under the new Appendix Returning Resident, who have been absent for a significant period of time and have not had family ties or business connections to the UK.
If you or someone you know is concerned about applying under the Returning Resident rules, it is advisable to speak to a Solicitor to provide strategic advice as to preparing a case which meets surmounts recent changes to the Returning Resident Appendix.
Success Story
Our Partner, Jayesh Jethwa has acted for clients whose ILR had lapsed (often extensive) and for a range of reasons. In one instance, a client had been abroad for several years tending to her mother who was terminally unwell.
Upon the mother’s passing 27 months later, the applicant attempted to enter the UK and was refused entry. She made an application of her own volition to The Home Office which was refused on the basis that the applicant did not have strong ties to the UK.
Our lawyers provided a detailed case strategy and explored other factors including case law and Home Office guidance. It was argued that the applicant’s length of original residence in the UK was extensive.
Our lawyers argued that, but for the mother’s illness, our client would not have been absent for an extensive amount of time. Evidence as our client’s employment and her sudden resignation along with support letters were adduced. Our client’s ILR was reinstated on an expedited basis.
To discuss any of the points raised in this article, please contact Jayesh Jethwa or fill in the form below.