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Supporting EU nationals’ Settled Status applications – could you be in breach of the law?

As EU nationals wishing to stay in the UK beyond Brexit apply for ‘Settled Status’, Laura Darnley warns of the risks that employers face in helping their staff through the process:

“Immigration advice is regulated in the UK.  If you give immigration advice or provide immigration services and aren’t regulated, you could be committing a criminal offence under the Immigration and Asylum Act 1999. Only members of the Office of the Immigration Services Commissioner (OISC), the regulator – or those of a handful of other legal professional bodies including the General Council of the Bar and the Law Society of England and Wales – are legally allowed to give immigration advice.

“There are a small number of exceptions to this, such as where an employer is sponsoring the worker; or where the advice is provided free of charge by an employer to an employee (or prospective employee) who is an EEA national – which includes nationals from the EU states – (or the family member of an EEA national).  But each exception is narrowly defined, and we would advise caution when relying on them.

“The way the exemptions are worded potentially pose particular problems for recruiters who won’t be employing the individuals concerned or for individuals who are not employees at all (such as the self-employed, contractors etc).

“More widely, there is the real prospect that the exceptions could well be subject to change post-Brexit; as the rules around status become more complicated for EU and EEA nationals, it is highly likely that this exemption will be tightened up to prevent businesses from providing immigration advice without the relevant skills and qualifications to do so. Agencies offering support to workers which don’t fall within the strict requirements of an exception, will fall foul of the Act’s prohibitions and may be committing a criminal offence.

“Penalties can range from up to two years in prison or a fine.

“There have been prosecutions under these provisions; a trainee solicitor was prosecuted in 2017 and found guilty of providing unregulated immigration advice and services. He was sentenced to 18 months in prison, suspended for two years, ordered to perform 200 hours of unpaid work and was banned from being a company director for eight years. He also had to pay prosecution costs of £500.

“A former recruitment consultant was recently prosecuted for breach of the Act; this resulted in a 12-week suspended sentence for providing unregulated immigration advice.

“Understandably agencies will be looking to support those in need of completing the application – particularly against the backdrop of potential language barriers and new Android technology that many may find difficult to navigate. Aside from simply wanting to support staff, it’s in an agency’s commercial interest to ensure these workers retain their right to live and work in the UK. But employers/recruiters must beware. There is a grey area between helping and advising and while it may be tempting to handhold workers through this process, there’s a chance they’ll be in breach of the Act by doing so. Advising on how to complete the application or even offering to review before submission, for example, would be dangerous territory as it may inadvertently put businesses in breach of the Act.

“If someone is struggling to complete the application without guidance, businesses should point them in the direction of the Home Office’s website where there is a toolkit to support. Depending on business requirements, it may also be worth considering partnering with a regulated advisor who can offer support and advice on the process and answer the specific questions that individuals are likely to have.

“Another consideration worth bearing in mind is that in providing advice, businesses leave themselves at risk should something go wrong with the application; potentially leading to aggrieved employees and legal claims. We’ve been involved in a case where this happened – In a bid to ease an employee’s concerns about their immigration status, HR told the individual ‘not to worry’. Unfortunately, the individual concerned took this to mean the employer was taking care of everything; he subsequently missed the deadline to extend his visa and found himself in the UK illegally. Despite the application legally being his responsibility, the ‘advice’ from his employer, was enough for him to threaten taking the employer to court.”

 

© The Recruiter 2019

Laura’s comments originally appeared in The Recruiter. Read the full article here.