What Are The Responsibilities Of Being An Employer In The UK
Previously we shared an article explaining how employers should apply for sponsorship, if employers want to hire oversea employees. We have also given you a detailed overview of the process and documentation required to apply for sponsorship license, you are more than welcome to click here for further details.
In addition to applying for sponsorship license and guaranteeing jobs for overseas employees, employers have many obligations to employees. In today's article we will give you a comprehensive introduction to the responsibilities of employers.
Employers' Liability Insurance
As long as you become an employer in the UK, you must purchase employer liability insurance from an insurance company authorised by the UK government before you can formally hire an employee, and the value of the policy must be at least £5 million. If an employer hires only one family member as an employee, or hires only one employee outside the UK, employer liability insurance may not be required.
Employer's liability insurance can protect employers' benefits in a number of ways, such as helping employers pay compensation when their employees need compensation for work injuries or illnesses. If the employer does not purchase insurance then it will face £2500 per day, accumulating from the date of no insurance. The UK government also checks the employer's certificate of insurance and could also be fined £1,000 if the employer fails to show the certificate of insurance or refuses to provide it when requested by the inspector. Employer liability insurance will vary depending on the business activities of the company, we recommend that employers consult a professional before purchasing employer liability insurance.
Register PAYE (Pay As You Earn)
In addition to purchasing employer liability insurance, employers are also required to register with the HM Revenue & Customs in order to pay taxes and national insurance for their employees through PAYE, the UK's system for collecting income tax and national insurance. Therefore, the employer must register before the first payday, but the registration date cannot be earlier than two months before the payday. It usually takes 5 working days from registration to getting your employer's PAYE reference number.
Employers are required to report employees’ payments and deductions to HMRC on or before each payday. Tax arrears and national insurance amounts are generally calculated through payroll software, which includes employer national insurance premiums for employees earning more than £170 per week.
If the employer is not familiar with the UK tax system, it is advisable for the employer to seek help of an accountant to handle such business.
Register for a Pension scheme
Under the Pensions Act 2008, every employer in the UK must include certain employees in their workplace pension and pay a fee, a liability that begins on the day the employer's first employee starts working, which is known as 'auto-registration'. The UK has a dedicated pensions regulator to ensure that all employers comply with workplace pension laws.
In the scheme, the employer's main responsibility is to monitor the age and income of the employees each time they are paid to determine whether they need to be included in the pension plan and how much the employer needs to pay.
In addition to paying pensions, employers are also obliged to pay the following two fees on behalf of employees.
Income Tax
Personal income tax is a tax levied by the government on personal income, and there are many types of income within the scope of taxation, including:
- Wage income;
- Self-employment income;
- State or social welfare;
- Pension income, including state pensions, corporate and personal pensions, and retirement annuities;
- Rental income;
- Benefit bonuses earned at work;
- Trust income, etc.
Among them, personal income tax expenses arising from wage income and work benefit bonuses need to be deducted from the wages or bonuses by the employer before paying the wages or bonuses, and then the employer pays taxes to the UK government through PAYE. Employers need to calculate how much income tax deduction is required based on the employee's Tax Code.
The standard Personal Allowance is £12,570, and income exceeding the exemption is taxed at a different rate in each range. The specific income tax rates for the current tax year (from 6 April 2021 to 5 April 2022) are as follows:
| Personal allowance | Under £12,570 | 0% |
| Base tax rate | £12,571 to £50,270 | 20% |
| High tax rates | £50,271 to £150,000 | 40% |
| Additional tax rates | Over £150,000 | 45% |
If an employee applies for a marriage allowance or a blind allowance, the income tax exemption will be higher. If an employee earns more than £100,000, the income tax exemption will be lower.
National Insurance
Same as personal income tax, employers are obliged to deduct national insurance from wages before paying their wages and then pay them to the UK Government via PAYE.
The national insurance premium is paid to individuals who have reached the age of 16 and meet the following two conditions:
- Employees earning more than £184 per week;
- Self-employed earn £6,515 or more per annum.
Employees earning more than £184 a week and who are under the national pension age are subject to Type I state insurance, which is automatically deducted from wages by the employer. In the first category of national insurance, the amount required by the employer to withhold varies depending on the letter code of the employee's national insurance category. For the current tax year, the specific Category 1 national insurance rates are shown in the chart below:
Note that in the next tax year, from 6 April 2022 to 5 April 2023, the national insurance premium will increase by 1.25%, and the scope of the increase includes categories 1A and 1B national insurance.
In addition to withholding income tax and national insurance premiums from employees, employers are required to provide employees with pay slips on a monthly basis, indicating the breakdown of income tax and national insurance premiums deducted for the current month. Similarly, if the employer is not sure how each employee's pension, income tax and national insurance should be calculated, it is recommended that the employer seek the help of a professional accountant.
Immigration skills charge
When a sponsored employer provides a letter of sponsorship (COS) to an overseas employee applying for a Skilled Worker Visa or an Intra-company Transfer Visa, the employer is usually required to pay an immigration skills fee for the employee.
Generally speaking, employers are required to pay an immigration skills fee for overseas workers in the following two cases:
- Overseas employees applying outside the UK for a work visa for more than 6 months;
- Overseas employees applying within the UK for a work visa for any length.
However, if the overseas employee is applying for an in-house graduate trainee work visa, or if the overseas employee is converted from a student visa to a skilled worker visa or an internal personnel transfer work visa, the employer is not required to pay the immigration skills fee.
Also, if the employer is sponsoring overseas workers engaged in the following occupations, they are not required to pay the immigration skills fee.
- Biological scientist and biochemist;
- Physical scientist;
- Social and humanities scientists;
- Other natural and social science professionals;
- Research and Development Manager;
- Teaching professionals in higher education;
- Clergy;
- Sports athletes;
- Sports coach, instructor or official.
The specific amount of immigration skills fees that employers need to pay is as follows:
| Length of work for employees | Small or charitable organisations | Medium or large institutions |
| The first 12 months | £364 | £1000 |
| For every 6 months extension | £182 | £500 |
In addition to the above-mentioned responsibilities, employers are obliged to provide maternity and annual leave to employees. Almost all workers are legally entitled to at least 28 days of paid leave (also known as annual leave) per year. However, employers can count Bank Holidays and public holidays (e.g. New Year's Day, Christmas, Easter, etc.) as part of statutory annual leave.
If you have questions about employer-related legal liabilities, please contact our Immigration and Employment Law team.
Considerations For Buying A Property Through Auction House
As well as traditional estate agents or developers selling in the United Kingdom, Auction House is one of the ways to buy and sell a property. Often smaller developers and individual investors in the UK are more keen on auctioning property, and there are often property auctions across the UK. During the pandemic has restricted offline home auctions, so online house auctions have sprung up virtually and attracted numerous investors.
Participating in a house auction requires the discernment to distinguish between the pros and cons. Some houses may seem cheap, but in fact they are layered with mines, and follow-up problems are continuous. However, looking at the positive side, there are also many buyers who can pick up a big bargain. At Chen Neill Solicitors, our experienced conveyancing solicitors suggest that if you want to buy a property through auction, you must do your homework in advance, including fully reading and studying the legal pack provided by the auctioneer, and be sure to conduct a site visit.
Recently, a client from Chen Neill Solicitors bid on a high-end property in London's zone 1, although the price of the auction was relatively cheap, the lease of the house was less than 10 years. In the space of two years, the seller of the property is already the third resale of the property, and the first two sellers have applied for an extension of leasehold and it was unsuccessful. The client agreed to buy the property without fully understanding the legal documents and without a detailed understanding of the lease of the property before bidding. The client encountered problems and could not regret it. Because the law stipulates that once the property at auction is decided to be auctioned, the buyer must purchase the property (Legally Binding), and the entire transaction process must be completed within 28 days.
In order to avoid the loss of buyers who are interested in participating in the house auction and buy the auction house of their choice at the right price, our property solicitors have summarised the following suggestions:
1． Read the legal package carefully
Auctioneers will generally provide buyers with a package of legal documents for the property before the auction begins – including title deeds, environmental investigation reports from local authorities, lists of fixtures and fittings, seller information sheets, and any rental information related to the property. The legal documents provided by auctioneers are quite important, and it is recommended that you ask a solicitor to take a closer look, as there may be hidden contractual terms or loopholes that only professionals can find, and these loopholes may cause you to pay more than your budget.
2． Field trips
Generally speaking, you can make an appointment to visit your property about a month before the auction starts. You can bring an experienced architect with you on your expedition to help you see some issues that you may not notice from a professional point of view. At the same time, if you have plans to renovate your house, the architect can also estimate the cost of a renovation. This way, you can take into account the cost of the renovation when bidding. You can also hire a chartered surveyor to measure and evaluate the property during the viewing, and some of the structural problems of the property itself cannot be viewed with the naked eye, and the appraisal report of the professional surveyor will play a great help when you measure the value of the property.
3． Funding provision
If you are prepared to buy in cash, it is recommended that you ask your conveyancer to check the source of funds in advance to ensure that the transaction is completed within 28 days of bidding. If you need to take out a mortgage to buy a property, you will need to discuss with your mortgage lender in advance to get the Mortgage in Principal. This way you know the maximum amount you can bid for at the auction. Please note that you only have 28 days (20 working days) to complete the transaction after the auction, and often the loan application takes more than 28 days, it is just as important to have the purchase funds ready in advance as the two factors mentioned earlier.
One final tip is to take out home insurance as once your offer has been accepted, you will be liable for any damage to the property until completion, it is advisable to take out an insurance policy to protect yourself in the event of any damage.
If you are interested in buying an auction property or need any legal advice on real estate, please contact our residential conveyancing team.
How Can I Recover Debts Owed To Me Or My Company?
If money is owed to you by either a business or individual Chan Neill Solicitors is able to assist in recovery of this money dealing with anything from letters of claim up to, and if necessary, the issue of legal proceedings and providing representation at court.
The Procedure of Recovery of Debt From an Individual or Business
The first step when looking to recover a debt is for our lawyers to understand what the debt refers to, the amount that is owed and a full breakdown of that figure. We would also need to know any interim or part payments that may have been made for that debt or if any response has been received from the debtor in relation to the money owed.
Once we are satisfied that you do have a claim against a debtor the next step is to draft a letter of claim. The content and structure of the letter of claim differs as to whether the claim is against an individual or a business.
Claims Against an Individual
If you are looking to pursue an individual for monies owed then the letter of claim needs to contain certain information including, but not limited to, the amount that is owed, a full breakdown of the figure, the amount of interest owed and the costs that would also be payable if proceedings are issued. It is also necessary to include with the letter of claim a copy of a reply form and information sheet. The individual must also be given 30 days from receipt of the letter of claim in which to respond before any legal action can be taken.
If an individual does respond to the letter of claim either on the reply form sent or by email/telephone, we would be obliged to act reasonably and in a cooperative manner when dealing with them. What this means that if, for example, the debtor wished to repay the debt but only could afford to do so over an extended period of time because of financial commitments then we would be obliged to negotiate and cooperate with them in this regard. Should the court discover that we haven’t been cooperative then we risk our claim being struck out if legal proceedings are issued prematurely.
In terms of claiming debt from a business the rules are more relaxed. It is not necessary to allow a business 30 days in which to respond and you just have to afford them a reasonable period of time i.e. 14 days before you can issue legal proceedings. The business does also not need to be sent the relevant paper work an individual would or be provided an estimate for the costs and interest if legal proceedings become necessary.
Issuing Proceedings
If the letters of claim are ignored then legal proceedings may be the only option. Depending on the value of the amount that is owed will depend on the cost of issuing the proceedings (the issue fee) and the legal costs (solicitors fee). Should the amount owed be above £10,000.00 then the legal costs can potentially be recovered from the other side on top of the debt.
Below are the different type of claims depending on the size of the debt.
Small Claims Track – claims below £10,000.
Claims below £10,000 are processed under the small claim procedure in England and Wales. This procedure is one of the most cost-effective solutions. However, the costs of these proceedings are almost never fully imposed on the losing party.
Fast Track – Claims between £10,000 and £25,000.
The fast track procedure deals with undisputed cases with a value between £10,000 and £25,000. As these proceedings often take more time to process than the small claims track, the costs of this procedure are often (partly) passed on to the losing party.
Multi Track – claims above £25,000.
For complex or disputed claims above £25,000, the multi-track procedure should be followed. On average, these procedures take longer than small claims and fast track procedures. In this procedure, the judge can also decide that the losing party must pay all legal costs.
After Judgment Obtained
If we are successful in obtaining Judgment either in default or after a hearing/trial then we can actively seek to look to recover the money for you with the help of bailiffs (if necessary) or potentially by way of charging order if the debtor owns a property.
Should you wish to discuss any of the matters talked about above or if you wish to look to instruct us, please contact us. Our team speak English, Mandarin, Cantonese, Spanish, Portuguese, Russian etc. Our offices are in Mayfair and the city should you wish to see us in person.
How to look out for scammers and what legal action should you seek?
For the majority of overseas investors to UK companies, hopefully the investments have proven to be lucrative and or provided you with the ability to meet home office conditions. A small percentage of you however are falling victim to very unscrupulous people.
Here is one case we wish to example were we have assisted an investor and an innocent customer with.
The investor was advised that in order to help him comply with immigration visa rules, he could invest in a business opportunity and become a director and Tier 2 employee of a UK limited company. He would also obtain shares for his investment. The investment was substantial and had been paid to the directors personal bank account on the directors request. Over a period of time, suspicions arose that the monies invested were not being used for the company. However the investor had no access to company bank accounts and so could not confirm his suspicions and he was kept being promised his shares will be transferred to him. A friend of the investor entered an agreement with the company to sell his goods. The goods were sold but the sale monies were not given back to the customer, but kept by the company . The director offered instead a repayment plan to the customer. No sale monies were ever returned. At this point the investor realised all his suspicions must be real.
The only way forward was to legally reclaim what the investor and customer had lost. The director of the business however placed the company into liquidation. The director thought this would stop any claim for the investment monies or sale proceeds. Normally creditors of a company have to stand in line for anything a company in liquidation can offer them back. Usually there is no monies to offer creditors and they lose everything.
However with our experienced help and legal advices, the claimants have been able to pierce the corporate veil and go after the director personally for the monies owed. This is a very difficult argument to make before a High Court judge. With a lot of time, patience and explanation of what documents and witness evidence was needed, we issued a world wide freezing injunction on the director in his personal capacity and also a full claim for all the monies owed and invested. A High Court judge accepted the directors personal assets should be frozen world wide and judgement against the director in his personal capacity was also granted.
This has been a great relief to the investor and customer. Our ability to give them hope and strength to see this through has been appreciated. Rather than lose everything to an unscrupulous director, they have been able to stop this director from using the corporate structure from evading his liabilities.
We urge any potential investor to instruct lawyers from the beginning to do proper due diligence on who they are investing in and who with. When you are investing hundreds of thousands of pounds or millions of pounds, it is worth having lawyers do everything to advise and protect you before investment is made.
It will not always be possible to bring such an effective claim against a director who has been unscrupulous as detailed above and therefore we urge prevention is a better solution rather than reaction to a loss.
We do carry out due diligence work for overseas investors and would be happy to hear from you if you wish to have more information on your target investment.
We have listed commercial proceedings if you would like to know details of procedures for such litigation.
1, Appoint a solicitor -- provide your solicitor with timelines, documents and evidence of the case.
2, Draft and send the letters (pre-litigation) to defendant before making a claim.
3, Decide whether to initiate court proceedings (Issue the Claim), aslo considering whether it needs to make special applications before litigation, such as property freezing orders and property disclosure orders etc.
4, Prepare the prosecution file including claim application form, civil lawsuit (Particulars of Claim)
5, First appearance in court and prepare documents for court hearing.
6, Final Hearing and Judgment
If you do find yourself in a similar situation with an investment you have made as exampled above, please do contact us and we shall be happy to help.
Why is Anti Money Laundering Check So Important?
On October 28 2021, the National Crime Agency (NCA) announced that they had filed civil claims against a Chinese mother and two sons in the name of suspected money laundering, and successfully asked them to hand over a London property worth 1.6 million pounds for compensation.
National Crime Agency (NCA) is a law enforcement agency in the UK. This agency is the UK’s leading agency in combating criminal groups. It mainly combats organised crime and economic crime, including human trafficking, weapons and drugs, cybercrime, as well as economic crime across regional and international borders etc.
A woman named Mrs Hajiyeva was previously investigated by The National Crime Agency, they issued her an "Unidentified Wealth Order" (UWO) and asked her to explain and prove the source of her large amount of funds. The lady was unable to explain the legal source of her funds, thus, the National Crime Agency confiscated her luxury house in London.
What is the "Unidentified Wealth Order" (UWO)?
UWO refers to "Unexplained Wealth Order", which is a court order issued by a British court to enable the target person to disclose the unknown source of wealth. The relevant requirement for issuing an "unknown wealth order" is that the court must be convinced that there are reasonable grounds to suspect that the target person's known legal source of income is insufficient to enable him/her to obtain such a large amount of funds. After the National Crime Bureau and other law enforcement agencies successfully appeal to the High Court, the assets of people who fail to explain the source of their wealth may be seized and bank accounts may be frozen.
We have discussed in a previous article that many students’ bank accounts were frozen by the National Crime Agency or Police in the name of suspected money laundering due to private currency exchanges. Therefore, we once again remind students studying in the UK to use private currency exchange services carefully and not to be involved in money laundering investigations which could affect their studies. If you want to learn more about what to do if your bank account is frozen because of private exchange, you can click here to view the article.
What is Anti-Money Laundering Regulations (AML)?
Anti-money laundering legislation is a piece of legislation aimed at illegal money laundering. Money laundering refers to the illegal act of converting illegally obtained funds into legal funds or concealing the illegal source of funds. The purpose of the anti-money laundering law is to prevent money laundering activities that conceal and conceal the proceeds of crimes, such as drug crimes, organised crimes, terrorist activities, smuggling crimes, corruption and bribery crimes etc., through various means.
The process of money laundering usually includes the following 3 stages:
- Placement: Put "dirty money" into the legal financial system while hiding its source.
- Layering: This step is also known as "structuring". It hides the source of funds through a series of transactions and accounting techniques, and breaks down the funds into small transactions, making money laundering activities difficult to detect.
- Integration: After the laundered money becomes legal funds, it is withdrawn from legal accounts and real records, and then large-scale consumption, investment, etc are carried out.
In the United Kingdom, companies must abide by anti-money laundering laws. The anti-money laundering regulations in the United Kingdom stipulate that all industries that involve large amounts of capital must take a series of measures to prevent their businesses from being used for money laundering or terrorist financing purposes. For example, in the gaming industry, the UK government imposes very strict supervision. For casinos and online gambling platforms that do not have due diligence to investigate the source of customer's funds, the UK gaming regulator - the UK Gambling Commission will enforce penalties.
- In April 2020, the UK Gambling Commission (UKGC) imposed a fine of £13 million on Caesars Entertainment (now acquired by Silver Point Capital), which is the largest regulatory fine in the UK. Caesars Entertainment was punished on the grounds that it allowed a VIP registered as a high-risk gambler to place bets without investigating the source of funds, and lost £795,000. It also failed to investigate the source of funds for a lady who claimed to be a waiter and allowed her to bet £87,000. Additionally, allowed a customer to transfer £3.5 million through the casino without investigating the source and destination of funds, etc. In addition to being punished with huge fines, three senior managers of Caesars Entertainment in the UK also had their personal licenses revoked.
- March 2021, the British Gaming Corporation (UKGC) fined online casino and sports betting operator Casumo with a fine of 6 million to the Gaming Commission for anti-money laundering defaults in the United Kingdom. The casino operator must investigate the client's funds. And Casumo caused at least 5 customers to lose a huge amount of gambling money without investigating the source of customer funds.
In addition to the gambling industry, the real estate industry also involves a large amount of funds in every transaction. Therefore, the British government also urges real estate agencies and real estate transaction lawyers to check every client's funds. Especially funds from abroad, including those from areas with frequent and high-risk terrorist activities and areas with more serious bribery.
At present, the UK's anti-money laundering laws are becoming more and more stringent for financial service providers. For example, banks will always check the source of any large sum of funds in your account. If you plan to buy a house in the UK, we recommend that you prepare relevant documents and materials in advance and cooperate with a conveyancing solicitor for checking your source of funds. At the same time, we also recommend that you contact your bank manager in advance to avoid the bank from misunderstanding the large amount of money you have transferred for house purchases, which may cause your account to freeze.
If you have any questions about buying a house, investing in the UK and AML investigations, please contact us. Our team speak English, Mandarin, Cantonese, Korean, Russian, Portuguese, Spanish etc.
How do I get a British passport after obtaining Indefinite Leave to Remain?
Majority of the new immigrants will choose to apply for naturalisation after obtaining permanent residency status, and they can become British citizens only after the naturalisation application is approved. In this article, we will introduce to you some things you need to pay attention to when applying for a British passport after your naturalisation application is successful.
After your naturalisation application is approved, you need to attend the Citizenship Ceremony before you can apply for your first British passport. Only applicants who are over 18 years old or 18 during the application process need to participate in the naturalisation ceremony. Minor applicants will be directly awarded a Certificate of Registration, so they do not need to participate in the naturalisation ceremony. We will introduce you the process and precautions of naturalisation application in detail later.
Many people have a misunderstanding about holding a British passport, believing that it is a document that grants the naturalisation applicant the right to British nationality, but in fact the right to British nationality is granted by the Certificate of Naturalisation issued at the Naturalisation ceremony. A British passport is mainly an important identity document presented when British citizens travel in and out of the country or need to prove their identity.
All citizens who have obtained British nationality can apply for a British passport. The validity period of an adult passport is 10 years, and the validity period of a child passport is 5 years. It should be noted that if the passport applicant is 16 years old or will be 16 years old within 3 weeks, then the applicant should apply for an adult passport instead of a child passport.
Passport applicants can complete the application online or fill out the form and post the application. The online application fee is £75.50, and the postal application fee is £85. Currently, the processing time for online adult passport application is 7 weeks, and for child passport application is 6 weeks. Whilst the processing time for postal applications will be longer. Therefore, we will mainly explain to you the process of an online application.
The documents required to apply for the first British passport online are:
- Passport-sized electronic photo;
- Naturalisation certificate or registration certificate;
- Foreign passport used before becoming a British citizen.
At the same time, the passport applicant also needs to provide a countersignatory. The staff of the HM Passport Office will contact the countersignatory via email to confirm the identity of the passport applicant. Countersignatory must meet the following requirements:
- At least 18 years old;
- Currently living in the UK;
- Hold a British passport;
- Know the passport applicant for at least 2 years (if the passport applicant is a minor child, the witness needs to know the guardian of the minor child for at least 2 years);
- Work in or be retired from a “recognised profession” such as teacher, doctors, lawyers, accountants and other professional workers. (The list of acceptable professions can be found on the official website of the UK government).
After completing the online application, the passport applicant needs to post the documents specified in the confirmation email to the designated address. After the application is approved, the new passport and the previously posted documents will be sent back separately.
In addition to the application process that must be completed above, applicants for the first British passport may also be required to attend an identity confirmation interview. Generally speaking, only minor applicants who have reached the age of 16 or will be 16 years old during the passport application period will be notified of the interview. Adult applicants over 18 years of age and child passport applicants will not be required to attend.
The purpose of the interview is to help the HM Passport Office confirm the identity of the applicant and confirm that the passport application is actually initiated by the applicant, this reduces the number of cases of identity fraud.
The UK passport interview will last approximately 20-30 minutes. During this period, the applicant may be asked the following questions:
- Applicant's full name and spelling of the name
- The full names of the applicant's parents and their current occupation
- Applicant's current residence address in the UK and the previous address outside the UK
- The name and address of the applicant’s school and the name of their teacher
- The full name of the applicant’s closest friend in the UK
All in all, the interview questions will relate to the applicant. Answering interview questions confidently will help the interviewer make judgments and issue the passport.
If you have any further questions about the passport application process and passport interview or need help, please contact our immigration team.
How different interpretation of the Immigration Rules can alter the outcome of a visa application?
In this complex body of law, it is hard not only to find the relevant rules and policy guidance but also to correctly interpret the relevant provisions of the Rules. In recent years the Home Office has vowed to simplify the Rules, make them more accessible and easier to understand. Sadly, it remains challenging for an ordinary person who does not practise immigration on a day-to-day basis to navigate the Rules.
In practice, issues often arise when applicants’ interpretation of the Rules does not align with that of the Home Office, resulting in refusals with a right to administrative review or appeal as the only remedy.
In this article, we would like to focus on the interpretation of ‘existing limited leave to enter or remain upon their departure and return’ as stated in the definition of ‘continuous residence’ in relation to indefinite leave to remain applications on the grounds of Long Residence (10 years route).
Findings
The Immigration Rules for this visa route were first laid before the House of Commons on 31 March 2003 (Statement of Changes HC 538). Since then, the wording of paragraph 276A(a) has remained unchanged. ‘Continuous residence’ in the Immigration Rules is defined as:
‘residence in the United Kingdom for an unbroken period, and for these purposes a period shall not be considered to have been broken where an applicant is absent from the United Kingdom for a period of 6 months or less at any one time, provided that the applicant in question has existing limited leave to enter or remain upon their departure and return…’
In its ordinary meaning, the phrase ‘existing limited leave to enter or remain upon their departure and return’ should mean existing visa upon departure from the UK and upon arrival to the UK. However, it has come to our knowledge that in the past the Home Office expected that applicants had existing visas upon departure from the UK and upon arrival to the UK under the same visa category.
We would like to address the two following successful appeals in which the applicants challenged the Home Office and their own interpretation of ‘existing limited leave to enter or remain upon their departure and return’.
TT v The Secretary of State for the Home Department
In 2008, in the case of TT v The Secretary of State for the Home Department [2008] UKAIT 00038, the appellant appealed against the Home Office’s decision to refuse her indefinite leave to remain application on the grounds of long residence in the UK, namely due to ‘breaks in continuous residence.
Throughout the concerned 10-year qualifying period, on two occasions the appellant left the UK with leave to remain, which expired whilst she was out of the country, and she obtained valid leave to enter prior to returning to the UK. The Home Office argued that because she had not returned on those two occasions with the same leave which she had when she left the UK, there was a break in the continuous residence and, therefore, the appellant could not satisfy the requirements of the ten-year rule.
It was subsequently held by the Immigration Judge that, for the purposes of 276A-176D of HC 395, a period of continuous residence, as defined in paragraph 276A(a) is not broken in circumstances where a person with leave to remain in the UK obtains further leave from an Entry Clearance Officer while temporarily outside the UK prior to the expiry of the leave to remain. The tribunal was of the view that ‘if it had been thought to be sufficiently important to make that a requirement of the Rule, then we can see no reason why it would have been drafted in those terms’.
Sawehli v Secretary of State for the Home Department (IA/24415/2012)
In 2012, in the case of Sawehli v Secretary of State for the Home Department (Appeal Number: IA/24415/2012), the Upper Tribunal reaffirmed the judgment of TT and its interpretation of ‘continuous residence’. The issue in the appeal also concerned whether or not the appellant had acquired the necessary 10 years of continuous residence to qualify for indefinite leave to remain on the grounds of long residence. In the judgment, Upper Tribunal Judge Kopieczek reiterated the interpretation of the Rules in TT, stating that ‘paragraph 276A does not require a person to have the same leave when returning to the UK as the leave he had when he left.’
Conclusion
It is imperative to contest the Home Office in their own interpretation of the Rules. Challenging the Home Office's decision is not only a tactical ploy in order to preserve one’s immigration status. The successful appeal or administrative review can set a precedent as to how certain provisions of the Rules should be interpreted.
As a result of the abovementioned appeals, the interpretation of the phrase ‘existing limited leave to enter or remain upon their departure and return’ was re-instated to its original meaning.
If you believe that this issue concerns you and that you could be entitled to indefinite leave to remain based on historic 10 years’ continuous residence because of the unfair refusal, please do not hesitate to contact our Immigration team.
Please note that requirements may vary from case to case based on the nuances of your situation, and the information on this page is not intended to replace legal advice.
Can I still apply for Naturalisation if I do not meet the absences requirement?
Naturalisation is a process in which a foreign national who is free from immigration time restrictions can apply to become a British citizen. Becoming a British citizen is a significant life event; but Naturalisation is not an entitlement. The application process for Naturalisation is subject to legal and residence requirements, which, can be waived to certain extend, but cannot be ignored altogether.
The residence requirements for Naturalisation include the absences requirement, which is a particularly sore subject due to the ongoing COVID-19 pandemic due to the associated borders closure and flights cancellations. Thankfully, the Secretary of State has powers to exercise discretion and to waive the absences requirement.
In this article we wish to discuss how discretion can be exercised in relation to the excess of the absences limits.
Residence requirement for Naturalisation
If the applicant is married to or in a civil partnership with a British citizen, they need to have met the 3-year lawful continuous residence requirement upon application (s.6(2) of the British Nationality Act 1981) and be free from immigration time restrictions on the date of application. If not, the applicant needs to have met the 5-year lawful continuous residence requirement, and they need to be free from immigration time restrictions for 12 months before applying for naturalisation (s.6(1) of the British Nationality Act 1981). This is known as the qualifying period.
For Naturalisation applications under s.6(1), in the qualifying period of 5 years, the number of days of absences (number of days the applicant was away from the UK) should be no more than 450 days. For applications under s.6(2), the applicant’s days of absences within the qualifying period of 3 years should be no more than 270 days. In addition, in the final year of the qualifying period, the applicant’s absences should be no more than 90 days.
What if the applicant does not meet the above requirements, for instance, having exceeded the days of absences? Prospective applicants should not feel discouraged as this does not mean the Naturalisation application will be automatically refused. According to the Home Office guidance document, where an applicant has spent more than 450 days for s.6(1) applications, or 270 days for s.6(2) applications, outside of the UK during the qualifying period, caseworkers must consider exercising discretion if applicants meet other requirements.
The applicant has absences of more than 450/270 days during the qualifying period
Where the applicant has exceed the permitted absences by 30 days, the caseworker when determining the application must exercise discretion unless there are other grounds on which the application falls for refusal.
Where the applicant has absences of 480-900 days when applying under s.6(1) or 300-540 days when applying under s.6(2), caseworkers are advised to only consider exercising discretion where the applicant has ‘established their home, employment, family and finances in the UK’. In addition, applicants also need to meet one or more of the following requirements.
- At least 2 years residence (for s.6(1) applications) or 1 year (for s.6(2) applications) without substantial absences immediately before the start of the qualifying period. If the absence is above 730 days (for s.6(1) applications) or 450 days (for s.6(2) applications), the residence without substantial absences should be at least 3 or 2 years respectively.
- The excess absences are the result of postings abroad in Crown service or in service designated under s.2(3) of the 1981 Act, or accompanying a British citizen spouse or civil partner on an appointment overseas.
- The excess absences were an unavoidable consequence of the nature of the applicant’s career, such as a merchant seaman or employment with frequent travel abroad.
- Exceptionally compelling reasons of an occupational or compassionate nature to justify naturalisation, such as a firm job offer where British citizenship is mandatory.
- The excess absences were because the applicant was unable to return to the UK because of a global pandemic.
The applicant has absences of more than 90 days in the final year of the qualifying period
Home Office caseworkers are advised to only exercise discretion for excessive absences during the final year of the qualifying period for s.6(1) applications if the future intentions requirement is met. The purpose of the requirement is that applicants wishing to be naturalised as British citizens should not already have decided, or intend, to break their links with the UK. Caseworkers usually determine the future intentions of applicants based on past behaviour.
Where the future intentions requirement is met for s.6(1) applications, or where the applicant is applying under s.6(2), caseworkers then need to look at the days of absences in the final year of qualifying period, and whether the residence requirement across the qualifying period is met.
For instance, if the days of absences in the final year are 100 or less, caseworkers would exercise discretion. Where the absences are 100-180, and the residence requirement throughout the qualifying period is met, discretion is only exercised if the applicant demonstrates strong links through presence of family, employment and their home in the UK. If the residence requirement is not met, they also have to prove that the absence is due to Crown service or by compelling occupational or compassionate reasons.
If the days of absences in the final year are over 180, where the applicant has met the overall residence requirement, discretion can be exercised if only the applicant has demonstrated that they have made the UK their home. If they are over 180 and the overall residence requirement is not met, discretion can only be exercised if the applicant has demonstrated that they have made this country their home, and that there are exceptional circumstances.
Conclusion
It is reassuring that the Home Secretary can exercise discretion in circumstances where the absences requirement has not been fully met. Whether the excess in absences has been the result of the ongoing pandemic, or an unavoidable consequence of the nature of the applicant’s career, it might be worth attempting the application relying on discretion.
If you would like to apply for naturalisation and you believe that discretion would be beneficial to your application, please do not hesitate to contact our Immigration team. At Chan Neill Solicitors LLP, we understand the nuances of Asian and Middle Eastern cultures well. Across our team, we speak many languages including Mandarin, Cantonese, Gujarati, Russian, French, Korean, Portuguese, Hungarian and Spanish. With access to our solicitors at two locations, one in City and one in Mayfair, we cover a very broad spectrum of varying clients’ needs.
Please note that requirements may vary from case to case based on the nuances of your situation, and the information on this page is not intended to replace legal advice.
What can I expect from a passport interview?
Becoming a British Citizen is a significant event in one’s life. In order to fully enjoy the rights as a new Brit, following the approval of a Naturalisation application, it is a mandatory requirement to attend a Citizenship Ceremony, and then apply for a first British passport. On a remark, children are granted a Certificate of Registration instead and are not required to attend the Citizenship Ceremony, unless have turned 18 during the application process for registration.
It is a common misconception that a British passport confers a right to British nationality. The British Nationality is conferred by the Certificate of Naturalisation, which is issued during the Citizenship Ceremony. The passport is merely a travel document, but an important one if one needs to travel abroad or prove their right to reside in the UK.
As a part of the application procedure for a first British passport, it can be expected that an applicant is invited to take part in an identity interview. The invitation for an interview is usually sent to those, who are 16 or over, or likely to become 16 before they are issued with a British passport. Nowadays, it is extremely rare that adult applicants are invited for an interview, therefore, this article aims at children aged 16 and over.
Many fear this process; however, there is nothing to worry about. The interview merely helps the passport issuing authority to confirm the applicant’s identity and that the passport application, in fact, belongs to the applicant. The interview is an important part of the process to help reducing identity fraud. In other words, if you are who you claim to be, there is nothing to be afraid of.
The British passport interview lasts approximately 20-30 minutes during which the applicant is expected to answer the following set of questions (which may vary):
- Their full name and spelling of their name
- The full name of parent(s) and their current occupation
- Their current and previous residential address(es) in the UK and abroad
- The name and address of their school(s) and the name of their teacher(s)
- The full names of their closest friends in the UK
Naturally, the answers to these questions should be familiar to the applicant and they are expected to answer these questions without overthinking.
If the interviewer is satisfied with the information provided, the British passport should then be issued without delays.
If you are concerned about your prospective passport interview or you may have questions regarding your visas, please do not hesitate to contact our immigration team. At Chan Neill Solicitors LLP, we understand the nuances of Asian and Middle Eastern cultures well. Across our team, we speak many languages including Mandarin, Cantonese, Gujarati, Russian, French, Korean, Portuguese and Spanish. With access to our solicitors at two locations, one in City and one in Mayfair, we cover a very broad spectrum of varying clients needs.
Please note that requirements may vary from case to case based on the nuances of your situation, and the information on this page is not intended to replace legal advice.
What is the Seasonal Worker Pilot Scheme and how can this address the current shortages of workers in the UK?
After 2013, the Seasonal Agricultural Workers Scheme (SAWS) was closed as the government thought that the lower-skilled labour in the horticultural sector could be replaced by migrant workers through freedom of movement from the A8 countries. Six years and one Brexit referendum later, the UK government has announced the Seasonal Worker Pilot Scheme in 2019, which allows migrants to come to the UK to work in edible horticultural jobs temporarily. This article will give a brief overview of the current Seasonal Worker Pilot Scheme and how this has addressed the shortages of workers in the horticultural sector in the UK.
Seasonal Worker Pilot Scheme
The Seasonal Worker Pilot Scheme was first announced on 6 March 2019. This scheme allows workers to come to the UK to work on farms for up to six months within one calendar year. This scheme allows the pilot operators to recruit temporary migrant workers for specific roles in the horticulture sector. As a response to the success of the initial pilot for 2019 and 2020 and the growing demand of seasonal migrant workers in the edible horticultural and agricultural sector, the UK government announced that 30,000 seasonal worker visa will be made available in 2021, three times the amount compared to 2020. Following the end of EU Freedom of Movement, this scheme has also become available to EEA citizens.
Under the scheme, the Pilot Operator may not source labour for themselves, but only as a third-party provider, whereas in the pre-2013 Seasonal Agriculture Workers Scheme growers were licensed to recruit their own labour.
The Department for Environment, Food and Rural Affairs (Defra) has identified that approximately 50,000 workers are employed seasonally on UK farms. The government also voiced their concern that the sector should show ‘greater urgency in modernising its business practices through automation for labour substitution and the recruitment of domestic UK workers’.
However, most of the employers in these sectors have become reliant on temporary migrant workers over the years, and the response to Pick for Britain campaign has shown that the current supply of domestic UK workers is limited as an estate of only 5-11% of Britons have taken up the 70,000 harvesting roles in 2020. If anything, it has highlighted the demand for seasonal migrant workers. In the short term, the demand for migrant workers in the seasonal sectors such as edible horticultural still remains.
Seasonal Worker Visa Requirements
Seasonal Worker Visas applicants and sponsors are subject to validity, eligibility, financial and other requirements as set out by the Home Office in the Immigration Rules.
First, the applicant needs to meet requirements for entry clearance such as fees, biometrics, valid passport, as well as receiving a Certificate of Sponsorship (referred to as “CoS” hereinafter) from a sponsor (the Pilot Operator employer). The applicant needs to be aged over 18 and applications can be made as early as three months before the start date of the role.
Second, the CoS must have been issued by a sponsor which has an endorsement from Defra in relation to the seasonal worker route; is licensed by the Gangmasters and Labour Abuse Authority; and is listed as A-rated on the Home Office’s published register of licensed sponsors; and is still approved as a sponsor on the date on which the application is decided.
The job offer must not have been withdrawn since the CoS has been issued. The CoS must also not have been used in a previous application that was already decided, and must state the role is in the edible horticultural sector, which means those growing protected vegetables, field vegetables, soft fruit, top fruit, vines and bines, and mushrooms.
Third, on application a financial requirement has to be met by either the applicant or the sponsor. The applicant must show that they have held £1,270 for a 28-day period and as specified in Appendix Finance. Alternatively, the sponsor can certify that they will maintain and accommodate the applicant up to the end of the first month of employment up to at least the amount of £1,270.
Once the application has been approved, the applicant will be granted permission to work in the UK for either the period of the role on the CoS plus 14 days before and after, or a maximum of a 6 months stay in any 12-month period, whichever is shorter. The applicant will also have no access to public funds and the work is only permitted in the role the applicant is being sponsored for. The applicant is, however, permitted to study, subject to the ATAS condition.
Uptake of the Seasonal Worker Visa Pilot Scheme
According to the Managed Migration Datasets published by the Home Office, Since the introduction of the Pilot, the number of applications has increased year on year. The total number of applications made for this visa in the year of 2019 was 2,494. In 2020, despite the economic downturn and restrictions resulted from the coronavirus (COVID-19) pandemic, the number of applications made in Q2 2020 alone was more than the whole year of 2019, at 3,229. Following the extension of the pilot and the increasing of the cap to 30,000 at the end of December 2020, this combination has resulted in a huge increase in the number of applications of this visa. In Q1 2021, the number of applications were 4,035 and in Q2 2021 alone the figure skyrocketed to 12,375.
When looking at the countries of origin of the applications, Ukraine, in particular, has been the most responsive country to this scheme, with 20,504 applications having been made since the pilot has opened to Ukrainian nationals. In Q2 2021, 8760 applications were made. Following Ukraine, the countries with more than 1,000 applications are Russia, Georgia and Moldova, with 1,427, 1,239 and 1,064 applications having been made respectively since the launch of the scheme for these countries. In total, as of Q2 2021, nationals of 45 countries have submitted applications to the Pilot.
Most applications under this visa category were approved. From the launch of the pilot scheme in Q1 2019, 26,182 visa applications have been made and 25,975 visas have been issued under this scheme by the end of Q2 2021.
The above data have shown the response to this pilot has been positive, and that the scheme has provided temporary relief of seasonal labour shortages in the UK edible horticultural sector. As the current extension of the pilot is still ongoing, we await the figures for Q3 and Q4 2021 to understand the full extent of the uptake and response of the current extended pilot, particularly from EEA citizens.
Conclusion
One of the objectives of the Extended Pilot is to determine whether the Pilot might provide a longer-term model for responding to seasonal labour shortages in this sector. From the dataset published by the Home Office in relation to this Pilot, it is evident that migrants are responding to this visa route as the number of applications have increased almost eightfold, when comparing first halves of 2019 and 2021.The Pilot has temporarily alleviated shortages in the horticulture sector, and has helped to gather information for the Home Office, Defra, and employers in the horticulture sector, to get a possible approach for seasonal labour in the future. The Scheme has also been used to bring poultry workers and HGV fuel tanker drivers to address the current shortages.
If you have any enquiries, please contact us.