Employees with Indefinite Leave to Remain
For UK employers and HR directors it can be a minefield to work around the various types of immigration status that a job applicant or an employee may hold. In this article our immigration solicitors look at employees or potential job candidates with indefinite leave to remain status.
UK Online and London Based Immigration Solicitors
Employment and immigration status
One thing is certain; immigration law is complex and with Brexit and the end of free movement for EU nationals it has got more complicated. With the ready availability of EU nationals who weren’t subject to immigration control, many small to medium UK employers, or those in niche sectors, didn’t need to worry about sponsor licences to sponsor skilled migrant workers on work visas or whether their employees from the EU had settled status or pre-settled status and could prove it.
With the introduction of the UK points-based immigration system, most UK employers now need to know a bit about business immigration and employment law for employers and more importantly when they need expert legal advice.
Your business can employ anyone who has the right to work in the UK. To avoid being in breach of UK illegal working legislation the company must conduct a right to work check before you employ a new employee. Failure to complete a check, or not conducting the check properly, could result in the business losing its statutory excuse and therefore facing penalties under the illegal working legislation as well as reputational damage and placing its sponsor licence at risk.
That is all heavy stuff, especially when there are so many different types of immigration status, such as:
- A British citizen. The person could be a British citizen by birth or naturalisation or the person could have dual citizenship.
- A person with indefinite leave to remain in the UK.
- An EU national with pre-settled status or settled status under the EU Settlement Scheme or a pending application.
- A non-EEA national with a Tier 2 (General) visa (this type of visa was replaced in December 2020 with the skilled worker visa but old-style Tier 2 visas remain valid whilst the skilled migrant worker remains in their sponsored employment).
- An EU national or non-EEA national who secured a skilled worker visa after the 1 January 2021 for EU nationals and after December 2020 for non-EEA nationals.
- An international student who has secured a graduate visa that enables them to find employment without requiring a sponsoring employer with a sponsor licence.
- An international student on a student visa who has the right to work on a limited basis and subject to conditions.
- A person resident in the UK who is subject to immigration control but their visa gives them a right to work, such as those who secured entry clearance on a family visa or a dependant visa or the British national (overseas) visa (otherwise known as the Hong Kong visa) or a person with a temporary worker visa or intra company transfer visa.
These are just a few examples of the types of immigration status that a business owner or HR executive may come across.
Indefinite leave to remain in the workplace
When it is seen that a job applicant or new recruit has indefinite leave to remain you may think that is ‘as good as British citizenship’ but there are important differences and ‘indefinite’ doesn’t always mean indefinite under UK immigration rules.
You are also likely to come across the situation where a worker on a work visa, such as the old Tier 2 (General) visa or the skilled worker visa, moves from work visa to indefinite leave to remain status. That is normally welcome news for an employer as it means you no longer have to sponsor the employee’s employment and therefore the company isn’t under an obligation to pay an immigration skills charge or comply with sponsor licence reporting and recording duties in respect of that particular employee.
What does indefinite leave to remain mean?
To a HR executive when an employee has indefinite leave to remain it means you don’t have to carry out repeat right to work checks as, unlike a person with limited leave to remain on a skilled worker visa, a worker with indefinite leave to remain does not have a time limit imposed on their ability to live and work in the UK.
However, it is possible for someone with indefinite leave to remain to lose their indefinite leave to remain status. That may appear odd as then indefinite doesn’t actually mean indefinite. The UK immigration rules provide that indefinite leave to remain is lost if a person with ILR leaves the UK for more than two years.
It is also important to understand that there are differences between indefinite leave to remain and settled status under the EU Settlement Scheme. In addition, there are differences between the legal definition of indefinite leave to remain and British citizenship, whether the British citizenship was acquired by birth or by naturalisation.
Indefinite leave to remain and discrimination in the workplace
All UK business owners and HR directors will normally try their utmost to avoid race discrimination claims in the workplace. You may feel that your business is at low risk of such a race claim as you only employ British citizens or those with indefinite leave to remain or settled status because your company doesn’t hold a Home Office issued sponsor licence to sponsor skilled migrant workers on skilled worker visas.
However, it is still crucial that all employers have an anti-race discrimination policy in place. That is because any worker who holds either indefinite leave to remain status or settled status could potentially bring a race discrimination claim against their employer as ‘race’ is widely defined to include nationality. Therefore, inevitably, any worker with indefinite leave to remain or settled status has a protected characteristic and could bring a race claim under anti-discrimination legislation.
However great you believe your company anti-discrimination policies to be in relation to the recruitment of new workers, remember that a claim can be commenced because of discrimination experienced post-employment. For example, a worker with indefinite leave to remain status could say that they were subject to racial harassment by their fellow workers or that they experienced discrimination as they were selected for inclusion in a redundancy pool and were made redundant by the business because they held ILR status. This is a complex area as you may have thought your company was doing the right thing by keeping on skilled migrant workers sponsored under skilled worker visas because if they were to be made redundant, they would have their visas curtailed and could not only lose their employment with your business but also their right to stay in the UK. A worker with indefinite leave to remain would not lose their right to live and work in the UK by virtue of redundancy but they could argue they were discriminated against if your redundancy policy unfairly discriminated against them because of their particular nationality and did not use an objective redundancy selection criteria.
With indefinite leave to remain status, it is important to recognise that discrimination can take many different forms and ensure that all your HR staff are aware of this , both in terms of policy drafting, implementation and monitoring.
UK Online and London Based Immigration Solicitors