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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.

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The Intersection of Construction Law and UK Immigration

In an increasingly globalised world, the construction industry in the United Kingdom has witnessed a surge in international talent contributing to its growth and development.

However, this influx of skilled workers has also led to complex legal issues at the intersection of construction law and UK immigration.

This article delves into the challenges and opportunities that arise when construction law and immigration law converge, providing insights for both construction companies and foreign workers seeking opportunities in the UK construction sector.

The Role Of Immigration Law In The Construction Industry

The UK construction industry heavily relies on a diverse workforce, often requiring skilled and unskilled labour from overseas to meet its demands.

To manage this flow of skilled workers, the UK government has established a set of immigration laws and policies that construction companies must navigate.

These laws determine who is eligible to work in the UK, the duration of their stay, and the conditions under which they can work. It is crucial for construction companies to stay informed about these changes to ensure compliance and avoid legal complications.

A Recent Construction Industry Training Board Report States:

‘The commitment of the CLC (Construction leadership council) to work with the Home Office to support government engagement with industry on the system will therefore be important.

Among employers that had either considered the PBS (Points Based System) or had used it, the view was that it was too time-consuming, slow-moving and expensive. Of the half of employers that claimed awareness, 48% suggested that they had poor knowledge of it and only 28% reported a good understanding’.

Tier 2 (General) Visa (Skilled Worker Visa): A Key Pathway For Construction Workers

One of the primary routes for overseas construction workers to enter the UK legally is through the Tier 2 (General) Visa (skilled worker visa). This visa category is designed for skilled workers who have received a job offer from a UK-based employer. Construction companies must obtain a sponsorship licence to hire foreign workers under this scheme. It is imperative for both employers and workers to understand the specific requirements, including the minimum salary threshold and English language proficiency, to secure and maintain this visa.

The following roles have been added to the Shortage Occupation List:

• Bricklayers
• Carpenters and joiners
• Masons
• Plasterers
• Roofers
• Roof tilers and slaters

Compliance With Right To Work Checks

Construction companies in the UK have a legal obligation to conduct right to work checks for all their employees, regardless of their nationality.

Failure to do so can result in severe penalties, including fines and imprisonment. These checks require employers to verify the identity and immigration status of their workers by examining relevant documents. To ensure compliance with immigration laws, construction companies must establish robust processes for conducting these checks and maintaining proper records.

Brexit And Its Impact On The Construction Industry

The United Kingdom’s exit from the European Union, commonly referred to as Brexit, has had a profound impact on immigration laws and the construction industry.

Free movement of labour within the EU ceased, affecting the ease with which European construction workers could work in the UK. As a result, construction companies now face additional administrative burdens when hiring EU nationals. Understanding the new immigration rules and ensuring compliance is essential to avoid disruptions in project timelines and maintain a skilled workforce.

Opportunities For International Contractors

While navigating the complexities of UK immigration laws can be challenging, international contractors can also benefit from the opportunities the UK construction sector offers.

The demand for construction services remains high, and skilled workers from overseas continue to play a crucial role in meeting this demand. With proper planning and adherence to immigration regulations, foreign contractors can establish a foothold in the UK market and contribute to its growth.

Conclusion

PBS plays an integral role in meeting construction’s fluctuating skills needs and the effective use of a sponsorship licence is now integral to its success.

The intersection of construction law and UK immigration presents both challenges and opportunities for construction companies and skilled workers alike. Staying informed about immigration laws, complying with right to work checks, and adapting to post-Brexit regulations are essential for success in the UK construction industry.

By understanding and navigating the legal landscape, construction companies and skilled workers can continue to contribute to the growth and development of the sector while ensuring compliance with UK immigration laws.

Our team at Quastels continue to act for construction companies and work closely with our construction team to provide employment and immigration support at a time when the shortage of labour is one of the key delay factors in construction projects. Our mobility solutions are designed to allow seamless integration with an entity’s need to complete a project on time.

To discuss any of the points raised in this article, please contact Jayesh Jethwa or fill in the form below.

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Supporting Employees with UK Visa Fees: Costs, Benefits & Clawbacks

UK Visa applications fees are becoming increasingly costly; the visa fees for a Skilled Worker visa for five years can exceed £12,000 for the main applicant. The importance of hiring skilled workers to assist in an entity’s growth and success versus the upfront cost of doing so creates a nexus.

A key decision for employers is consideration of the financial level of support provided to current or prospective employees hired under a skilled worker sponsorship licence.

Overview Of Fees

For most UK work related visa application, Government fees constitute the majority of the total costs, usually these fees will exceed professional legal fees. Government fees include the visa application fee, the Immigration Health Surcharge (IHS), the Certificate of Sponsorship (CoS) fee, and the Immigration Skills Charge (ISC). Other optional fees include priority services fees to expedite a visa application.

The Level Of Financial Support Provided By Employers

Whilst many employers will have a well-established policy in place to guide them, many employers do not. The extent of support that an employer can offer to provide can range from, the employee covering all of the fees (that they are legally required to pay) to employers paying for all of the fees associated with the visa application.

Many Employers Adopt An Ad-Hoc Approach and Base Their Decisions Upon A Varity Of Factors Such As:

• Seniority of the employee
• Their skill-set
• Their shortage in the employment market
• Departmental budgets
• The demand for the employee against business needs

Employers Take One Of The Following Approaches Generally:

1. Covering the full costs associated with the immigration application for the employee. Some employers will also cover the costs of the employee whilst others will not.
2. Paying only the professional fees and requiring the employee to cover all of the other costs that can legally be passed on.
3. Paying the mandatory fees in order the employee to be employed but not enhanced fees such as priority service to expedite an application.
4. Requiring a minimum length of service with clawbacks if the employee leaves prematurely.

Important Considerations For Employers

1. Employers need to consider, socio-economic factors such as labour trends along with inflation rates, shortage of talent, the cost-of-living crisis, employee morale and well-being.
2. There have been instances of employees rejecting or withdrawing from job offers over a lack of agreement as to who will pay the visa costs. It is important for relocation packages to balance the cost of visa fees with the ability to attract and retain talent critical to an entity’s success.
3. Employers should be duly advised as to the legal options available to them to protect their investments in respect to visa applications. Employers can insert a minimum service length clause. This means, if an employee leaves before reaching the requisite length of service the employer can clawback a percentage of the visa application fees.
4. It is important for employers to be consistent with the level of support that they offer. A case-by-case approach can lead to an imbalance in employee morale and give rise to potential discrimination claims.

Clawback Clauses

If an employer intends on inserting a clawback/repayment clause into their contract, they will need to consider the following relevant points:

• The rule against penalty clauses in the event of a breach of contract (an individual signs the contract and begins the visa process but does not commence employment);
• The principles surrounding restraint of trade (where there is no breach but the individual leaves within a few weeks or months such that the employer has not had the ‘benefit’ of the financial investment made;
• Discrimination.

To avoid any attack on the enforceability of a repayment clause, the contractual term must be proportionate. A ‘sliding scale’ based upon a greater reimbursement if an employer leaves sooner rather than later will be an important element to increase the prospects of the term of the contract being enforceable.

Conclusion

Hiring highly skilled individuals to grow or enhance your business is a primary aim when employing an individual from abroad. The initial outlay in visa application costs can be daunting. However, in our experience clients with a well-prepared policy or agreement in place, should the intended hire fail to commence work or leaves prematurely mitigate the cost risks associated with sponsorship.

Quastels

Our corporate immigration team can provide holistic legal advice across employment and immigration law. If you require advice or assistance in preparing a clawback or repayment agreement, contact Jayesh Jethwa at corporateimmigration@quastels.com

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