Date Legislation considered: 08 February 2023
Date Legislation in Force: 02 February 2023
Potential Right(s) Affected: Residence/Discrimination/Equal Treatment/Social Security Coordination
Background and purpose
The Explanatory Memorandum accompanying these Regulations provides a brief background to the purpose of these regulations. It states:
“2.1 This instrument makes amendments to immigration (including access to benefits and
2.2 It makes changes to the controls on migrant access to employment and the prescribed
checks employers should make in order to obtain a statutory excuse against a civil
penalty for employing a person without the right to work as a result of their
immigration status. It also makes analogous amendments to regulations relating to
illegal working compliance orders.
2.3 This instrument also makes other minor amendments to domestic subordinate
legislation, including to the Citizens’ Rights (Restrictions of Rights of Entry and
Residence) (EU Exit) Regulations 2020 (Restrictions Regulations 2020) and to the
Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020
(Consequential, Saving, Transitional and Transitory Provisions) (EU Exit)
Regulations 2020 to make them compliant with the EU Withdrawal Agreement, the
EEA EFTA Separation Agreement and the Swiss Citizens’ Rights Agreement (“the
Agreements”). Under the Restrictions Regulations 2020 a decision to deport certain
EEA citizens and their family members, based on conduct that occurred before the
end of the transition period at 11pm on 31 December 2020, can only be taken on
serious grounds of public policy or public security in relation to a person with indefinite leave to enter or remain granted under Appendix EU (that is settled status
under the EU Settlement Scheme (EUSS)). The amendment provides that said
persons with limited leave to enter or remain granted under Appendix EU (that is pre-settled status under the EUSS) are also entitled to consideration on such grounds if
they are eligible for settled status but do not yet have it.”
Employer check excusals
The Explanatory Memorandum provides the background to the right to work scheme:
“The Immigration, Asylum and Nationality Act 2006 (2006 Act) introduced the Right to Work Scheme. The Scheme allows the Secretary of State to serve an employer with a notice requiring the payment of a civil penalty of a specified amount where they have employed an individual who is disqualified from working on account of their immigration status.”
“Since 2008, a system of civil and criminal sanctions for non-compliance has been in place, set out in the 2006 Act (sections 15-25).”
“The Immigration (Restrictions on Employment) Order 2007 (2007 Order) prescribes how an employer will be excused from paying a penalty where they conduct checks online (using the Home Office online right to work service), use Identification Document Validation Technology (IDVT) service providers or undertake manual (checking of physical documents) right to work checks.”
Regulation 2 amends article 4B of the Immigration (Restrictions on Employment) Order 2007 (S.I. 2007/3290) (“the 2007 Order”) in relation to checks of immigration status undertaken by employers in relation to the employment of employees using the Home Office online right to work checking service.
Employers have been able to rely on the online service to provide a defence against civil penalty where an employee has leave to enter or remain in the UK. This regulation introduces a change in relation to an employee who has a pending application, administrative review or appeal. It provides that an employer can rely on the online service to provide a defence against a civil penalty where the online right to work check confirms that the employee has a right to work by virtue of a pending application, administrative review or appeal. The employer will be able to rely on this check for six months from the date of the check.
Guidance is available to assist employers to understand the checks that are required.
Regulation 3 amends the Illegal Working Compliance Orders Regulations 2016 (S.I. 2016/1058) to ensure the checks to be conducted by employers subject to such orders are in line with the amendments made to the 2007 Order.
Illegal working closure notices under Schedule 6 to the Immigration Act 2016 can be issued to prohibit paid or voluntary work on a premises. They are issued where the employer operating at the premises has:
- employed an employee who is subject to immigration control and does not have valid leave or whose leave prohibits employment, and
- previously breached illegal working legislation, for example employing an illegal worker.
Where an illegal working closure notice is issued, an illegal working compliance order must be sought. Such an order may require certain right to work checks to be carried out. The Illegal Working Compliance Orders Regulations 2016 require certain steps to be taken in relation to right to work checks that may be imposed as part of an illegal working compliance order.
The changes introduced by regulation 3 ensure that the right to work checks carried out and documents required under an illegal working compliance order are aligned with those which would give employers a statutory excuse from paying a civil penalty under the 2007 Order (see changes made by regulation 2 above).
Higher deportation threshold expansion
Regulation 4 amends the Citizens’ Rights (Restrictions of Rights of Entry and Residence) (EU Exit) Regulations 2020 (‘the 2020 Regulations’). The 2020 Regulations ensure that decisions to deport individuals within scope of the Agreements are made in compliance with Chapter VI of Directive 2004/38/EC where the deportation relates to conduct occurring before the end of the transition period. A deportation decision based on such conduct cannot be taken in respect of an individual with indefinite leave to remain under the EUSS (settled status), except on serious grounds of public policy and public security. The amendment made by regulation 4 extends this protection to those with limited leave to remain under the EUSS (pre-settled status) who are eligible for settled status under the EUSS, but have not yet obtained it. This will bring the provision into line with the refusal and cancellation of EUSS leave under Appendix EU and the relevant guidance – Public policy, public security or public health decisions (version 7.0, page 17).
Regulation 5 makes changes to Schedule 4 to the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 (Consequential, Saving, Transitional and Transitory Provisions) (EU Exit) Regulations 2020 (S.I. 2020/1309). Those Regulations were made, amongst other things, to ensure that those with pre-settled status under the EUSS were treated in the same way after the end of the transition period as they were prior to the end of the transition period for the purpose of accessing benefits and services.
Regulation 5(2)(a) inserts paragraphs (ai) and (ia) in paragraph 4(n) of Schedule 4 to the 2020 Regulations. Paragraph 4(n) modifies the continued application of regulation 16 of the EEA Regulations 2016 which deals with derivative rights to reside. Regulation 5(2)(a) makes changes to the modification of the element of regulation 16 which deals with Ibrahim (case C-310/08) and Teixeira (case C-480/08) right-holders. These Court of Justice cases confirmed the right of children of workers to complete their education in the host state. The Withdrawal Agreement reflects this right for both children of workers (Article 24(2)) and children of self-employed persons (Article 25(2)). Regulation 16 of the EEA Regulations 2016 already reflects the right in Article 24(2) but regulation 5(2)(a) amends paragraph 4(n) of Schedule 4 to modify regulation 16 so that it also ensures access to benefits and services to relevant children of self-employed persons, as required by Article 25(2).
Regulation 5(2)(b) and (c) inserts paragraphs 6(d) and 7(c) in Schedule 4 to the 2020 Regulations to include references to determining whether a person is eligible for homelessness assistance or an allocation of housing by a local housing authority in Scotland. Before the insertions, the paragraphs addressed the situation in England, Wales and Northern Ireland only.
The IMA has no concerns in relation to regulations 2 and 3 of these Regulations.
The IMA welcomes the objective pursued by the provision in regulation 4. It seeks to amend the legislative framework so as to ensure deportation decisions made in relation to conduct occurring before the end of the transition period are made correctly in relation to all those who have obtained pre-settled status who are eligible for settled status, not as previously just those who have secured settled status. It therefore remedies a previous incompatibility with the Agreements. However, the IMA notes that both Appendix EU and the relevant guidance already reflected the correct position as laid out in the Agreements.
The IMA also welcomes the amendments in regulation 5 as it remedies previous incompatibilities with the Agreements.
Any citizen experiencing difficulties in exercising their rights is encouraged to report a complaint through the IMA Portal.
Further information about the IMA and guidance on how to report complaints can also be found on the Website.