Managing the conflicts of employment and immigration law in 2024

Dec 13, 2023

First Brexit, then COVID-19, and now new immigration rules. The Government made their intention to reduce net migration in the UK very clear when the Home Secretary set out the five-point plan to reduce net migration. The controversial and substantive changes are due to come into effect in Spring 2024. Whilst the Government claims that the new measures will cut net migration by an estimated 300,000, they haven’t announced what they are going to do to address the skills shortage, particularly within industries such as hospitality and social care.

Immigration law governs the way a foreign employee can work in the UK. All employees must have the ‘right to work’ in the UK, and if an employer allows an employee to work illegally, they face a hefty fine and could also be liable for criminal sanctions. By contrast, employment law is concerned with rights for employees, for example protection under employment contracts, not to be discriminated against, and not to be unfairly dismissed to name a few. If an employer breaches employment law, an employee may lodge a claim with the Tribunal and the employer might be ordered to pay compensation if the claim is successful.

What are the immigration changes in 2024?

  • Employees applying for a skilled worker visa, will now need to be earning at least £38,700 (previously £26,200) in order to qualify for this route to work in the UK
  • Care employees will be exempt from the increase in the minimum salary threshold but will not be permitted to bring dependants to the UK
  • Minimum income for a spouse/family visa will rise from £18,600 to £38,700
  • The 20% salary discount for shortage occupations to be abolished
  • The Migration Advisory Committee will be commissioned to carry a full review of the Graduate visa route with further crack downs planned to reduce “abuse” of the current system

What should you do now?

We would advise anyone affected by the changes to act promptly and submit their application before the changes are implemented next year. Looking at budgets and salary forecasts will help employers to ensure their sponsored employees will continue to qualify under the new rules, once their current visa comes to an end, and looking at whether you can apply earlier and for longer visas will help to mitigate the impacts of the changes in 2024. We can advise the best way to ensure that sponsor workers qualify for the longest period of time, which might mean doing an extension to their current worker visa before spring 2024. Consulting an immigration lawyer can help ensure you understand the new rules and complete visa formalities before the new stricter measures take force next year.

Possible Impact of these changes on employers and how to mitigate risk

Balancing the immigration and employment risks in this situation can be challenging. Risk areas will be:

  • suitable terms within employment contracts;
  • unfair dismissal;
  • penalty for employing illegal employees; and

Clauses in contracts, requiring employees to demonstrate they have the right to work in the UK, will help to mitigate risks of unfair dismissal and/or wrongful dismissal. If an employee breaches this term by not providing the necessary evidence, an employer might have grounds to argue that this is a breach of a fundamental obligation within the contract, which might allow them to dismiss the employee.

If an employee no longer has the right to work in the UK, this is a potentially fair reason for dismissal because their continued employment would contravene a statutory restriction. However, if an employee has more than 2 years’ service, the employer must still follow a fair procedure or there is a continued risk the dismissal would be deemed unfair by the Tribunal. It is also worth noting that in situations where continuity of service is in question, continuous employment service might be broken if an employment contract was legal for only part of its duration. Employers should be cautious where an employee has the right to work in the UK, but has not provided evidence of this right, as a statutory duty has not necessarily been breached in this scenario. However, an employee can be dismissed fairly for ‘some other substantial reason’, that being that the employer held a reasonable belief the employee had no right to work in the UK.

Balanced against the rights of employees is the harsh reality that the Government has also announced the overall maximum illegal working civil penalty for companies will likely increase in 2024 from £20,000 to £60,000. In addition, the starting point for a first breach may rise from £15,000 to £45,000. However, if an employee does not hold the right to work status, but the employer followed the correct right to work checks before the start of their employment, the employer will not be liable for a civil penalty under the statutory excuse.

Employers should not discriminate during the recruitment process, which includes making assumptions about a person’s right to work in the UK. Assumptions over immigration status on the basis of nationality, ethnic origin or accent could leave employers open to claims for discrimination. Employers should not exclude job applicants for things such as race as this is one of the protected characteristics under the Equality Act 2010. However, if an employer can prove that they have a good reason not to employ people who do not have the right to work in the UK, they might be able to objectively justify this type of indirect discrimination.

Learning points

The complexity of the UK immigration system, the changes set to come into force in spring 2024, and its conflicting relationship with UK employment law will undoubtedly increase the risks of Tribunal claims for employers. Our specialist employment department can help you to navigate issues surrounding unfair/wrongful dismissal, discrimination, review your current employment contracts and work with you to mitigate employment law risks. It will be an unfortunate consequence that the ‘right to work status’ for many employees will change as a result of the new measures, and some sponsored employees will no longer qualify for certain routes under the new system. Employers will need to be ahead of the curve to reduce the risk of a financial penalty, criminal sanction and/or employment law claim.

Our range of specialist immigration services help employers to meet their responsibilities as a sponsor.  We help employers to understand the changes and the impacts on their business and employees. We advise on compliance, prepare and submit applications for new employees (and their families to join or remain in the UK), provide immigration audit services, and offer full legal management of sponsor licences.

If you would like to discuss any of the points within this article, please ​contact us to speak to a member of our Employment and Immigration team.

This reflects the law and market position at the date of publication and is written as a general guide. It does not contain definitive legal advice, which should be sought in relation to a specific matter.

Sherry Fitzgerald

Sherry Fitzgerald

Partner, Head of Immigration

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