Matthew Davies is a partner in the Employment Department at Fox Williams LLP and leads its business immigration practice. You can contact the author at MDavies@ foxwilliams.com or 020 7614 2614.

top tips

Top Tips: Breaches, Overstay and re-entry bans: keeping it clean

You can contact the author at MDavies@foxwilliams.com

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Date Published: 6th Jun, 2008

Tough penalties for employers and employees who breach the immigration rules are of a recurring theme in this Immigration Special.  This week’s Top Tips looks at some new threats to employers recruiting or retaining key non-EEA Nationals – and how to avoid them.

If there was any doubt that the Government meant business, immigration minister Liam Byrne dispelled it when he announced tough new measures in a statement on 6 February 2008:

“We are changing the immigration rules to make it easier to keep out those we do not want….  we will not tolerate those who do not play by the rules”.

He then set out re-entry bans on individuals who have breached their conditions of stay or made false representations in immigration applications.  Even by recent standards, these are draconian measures.  Robust representations from lawyers and other stakeholders have since won some ministerial concessions and clarification – but these are limited in scope and duration.  The message is clear: now is the time to put your house in order and stop trouble before it starts.

Who’s banned?

Examples of individuals facing a re-entry ban include:

• Former students who work more than their permitted 20 hours per week in term time
• Working holidaymakers who exceeded their permitted 12 months in work
• Business visitors who cross the line from business to productive work
• Anyone who overstayed their immigration permission by more than 28 days
• Anyone who used false documents or representations in an immigration application, or withheld material facts

Employers could therefore find that an employee on whose skill they intended to rely is locked out of the UK for at least a year – and, in the worst case, for ten years.  Vigilance – appropriately exercised – is needed to ensure that current employees are not in breach, and new hires are kept within the rules. 

How will the ban be imposed?

An applicant for an entry clearance visa will be mandatorily refused if they have used deception in an entry clearance application within the previous ten years. 

Automatic refusal will also follow if they:

• Sought leave to enter or remain by deception
• Were an illegal entrant
• Overstayed for more than 28 days (or any period if they left at the public expense)
• Breached their conditions of stay, for example by working illegally or in breach of conditions (see examples above)

The periods of refusal are as follows:

• One year if the applicant previously left the UK voluntarily, and not at public expense
• Five years if they left the UK voluntarily, but at public expense (for example through the Assisted Voluntary Returns programme)
• Ten years if they were removed or deported from the UK

However, concessions are currently operating for those who were in the UK illegally on or after 17 March 2008 (the date on which the concession was announced) and who leave voluntarily before 1 October 2008.  This concession will not apply to anyone who “significantly contrived to frustrate the immigration rules”.  There are other circumstances in which refusals will not apply, such as cases where human rights issues have been raised, or where the person was under 18 at the time of the breach.  This has been clarified in recently published guidance.  The new guidance also clarifies that a refusal will not be issued where the application was not aware that documents submitted, or representations made in connection with a previous application were false.  Although these concessions relieve some of the most immediate and severe consequences in certain cases, we are clearly within a new regime. 

Why is this particularly relevant to employers?

Although the employee faces the ban, there are obvious consequences for UK employers who were relying on that person, and for the person’s ability to perform duties under their contracts of employment.  Beyond this however, the circumstances of the breach may have wider implications for a UK employer.  For example, if the breach occurred during the course of the person’s employment, its discovery will certainly trigger Home Office investigation into its relationship to the employment.  For example, if it involved a person working significantly beyond the expiry of their leave to remain date, and employment commenced after 29 February 2008, the employer could be liable for a civil or even criminal penalty under the 2006 Act (see HRLaw Auntie), and its rating on the sponsorship register may be downgraded – or worse (see HRLaw Focus).

How should an employer approach this minefield?

The integration of employment and immigration law considerations makes this a particularly fraught area.  The employer has to balance between compliance with immigration law requirements on the prevention of illegal working with avoiding discrimination (see HRLaw Focus and Auntie).  In addition, employers will need to understand a would-be migrant employee’s history properly in order to make the necessary declarations for the issue of a certificate of sponsorship under the Points Based System.  A history of immigration problems could become apparent at this stage.  A good rule of thumb is careful, methodical observance of the Government’s guidance on avoiding illegal working, and of the Code of Practice on avoiding discrimination in recruitment.  In cases of doubt, or where troubling information comes to light, at whatever stage, there is no substitute for prompt legal advice.