Beatrice Windsor

On Monday 7 August, the government announced that from early 2024, they will be substantially increasing maximum fines for anyone found to be employing those without permission to work in the UK. The maximum fine per worker for a first offence of illegal working is currently £15,000 and will be tripled to £45,000 per worker. For repeat offences, the maximum fine will also be tripling from £20,000 to £60,000 per worker.

There will also be increases in the maximum fines for landlords found to be renting accommodation to people without lawful immigration status. The maximum fine for hosting a lodger will sharply increase to £5,000 per lodger, up from £80. The maximum fine for illegally housing tenants in rented accommodation will increase to £10,000 per occupier – ten times the current maximum fine of £1,000.

Why is this happening?

The government have said that illegal working is a significant “pull factor” for illegal migration, and that this fine increase will help deter small boat crossings.

How do you prove your right to work or rent?

There is a complex system whereby employers and landlords can check specific documents. For those with digital status, they can apply to the Home Office to verify somebody’s immigration status.

British and Irish citizens

If you are a British or Irish citizen, then you would normally prove your right to work in the UK by showing your employer your passport.

Non British or Irish citizens

If you are not a British or Irish citizen, how you prove your permission to work in the UK will depend on the type of immigration status you hold:

Biometric Residence Permit and Biometric Residence Card holders

Previously, those with Biometric Residence Permits (BRPs) and Biometric Residence Cards (BRCs) could present these cards to show their immigration status. With an increase in the use of technology for immigration checks, holders of these cards must now prove their right to work online, by sending their employer a share code. Employers cannot rely on sight of BRPs and BRCs for new right to work checks.

Pending immigration application or appeal

If you have an outstanding application to extend your lawful residence or are awaiting the outcome of an appeal, you may still have permission to work in the UK. Although you may not have a valid immigration document, your employer can use the Employer Checking Service to confirm you have ongoing permission to work. The results of the check either come back positive or negative, and are valid for six months. If your immigration status is not resolved within that time, your employer can make a repeat check through the online system and continue to employ you.

How we can help

If you do not have the immigration documents that we have listed above to prove your right to work or your evidence is in paper format and you want to update it, we may be able to help. Please do not hesitate to contact us at enquiries@gryklaw.com or on 020 7401 6887.

On 20 December 2022, in the case Independent Monitoring Authority v Secretary of State for the Home Department, the High Court found that the government’s use of the European Union Settlement Scheme (EUSS) was unlawful.

The background

Following Brexit, the Withdrawal Agreement was agreed by both the UK and the EU, which addresses various terms of the UK’s exit from the European Union. New laws were contained in the Withdrawal Agreement such as Part 2 of the Agreement which was drawn up to protect the rights of millions of EEA citizens (people from EU countries and Iceland, Liechtenstein and Norway) living in the UK. The laws at Part 2 give these EEA nationals the right to continue to live, rent, work, study, and access state services in the UK, as they had been able to pre-Brexit.

Before Brexit, it was not necessary for EEA nationals to apply for any sort of immigration status in the UK to be able to access these rights. But Brexit threw up the question of how these EEA nationals’ immigration status would be defined once the UK left the EU. The UK Home Office created the EU Settlement Scheme (EUSS) to address this question and to put into action the UK’s obligation to protect the rights set out at Part 2 of the Withdrawal Agreement.

The EUSS allowed EEA nationals who had lived in the UK for five years before 31 December 2020 to obtain settled status. Settled status means that you can stay in the UK indefinitely, and is a secure and permanent immigration status. Those who had been here for less than five years on 31 December 2020 could get pre-settled status. Those with pre-settled status were granted temporary status or leave to remain, and this expires after five years.

Before the end of their five-year period of leave, those with pre-settled status would then have to submit another application for settled status. However, it was unclear what would happen to those who did not apply for settled status or who did not apply in time. It would appear that they would become overstayers and lose the rights they previously held. It was reported by the 3million that thousands of people with pre-settled status could lose their rights to live, work, study, and access state support in the UK, if they let their status expire. There was also the risk of detention or deportation.

The case

The Independent Monitoring Authority (IMA) is a body that was set up as part of the Withdrawal Agreement to protect the rights of the EU citizens who fall into its scope. The IMA issued the judicial review claim in the High Court to question whether this loss of rights for those with pre-settled status is what had actually been agreed by the UK and the EU in the Withdrawal Agreement.

The UK argued that the EU had agreed to this. However, the IMA successfully argued that it was unlawful for the UK to use the EUSS to create a situation where those with pre-settled status who did not apply for settled status would lose the rights conferred on them by the Withdrawal Agreement.

Mr Justice Lane determined several key points:

While the UK can put in place a system whereby people must apply for status by a certain deadline, the rights associated with this status once granted can only be lost in the circumstances that are set out in the Withdrawal Agreement – and expiry of status is not one of them.
Recipients of one type of status ie ‘pre-settled or ‘settled’ cannot be forced by the UK to pursue another. If this were a requirement, then it would be set out in the Withdrawal Agreement.
Therefore, those with pre-settled status should not lose their rights if they do not make a second application when their leave expires.
The right of permanent residence accrues automatically once the conditions for obtaining the right have been fulfilled, and it is unlawful for the UK Home Office to withdraw these rights based on the basis that to a person has not applied for settled status.

What now?

The UK Home Office has been granted permission to appeal this judgment. Until the judgment from this appeal is handed down and confirmed, those with pre-settled status should continue to apply for settled status before their leave expires.

If you require advice in relation to the above, we have particular expertise with EUSS applications, and would be happy to help. Please contact us on 020 7401 6887 or by email at contact@gryklaw.com.

Home Office triple fines for employing and housing migrants without lawful status

High Court Rules That Potential Loss of Rights For Those With Pre-Settled Status Under EUSS Is Unlawful