As the Prime Minister waives the fee for EU nationals wishing to stay in the UK post-Brexit, recruiters have been warned to avoid providing immigration advice on Brexit to workers on their books or risk being fined or even jailed.
Yesterday, PM Theresa May told Parliament that government decided to waive the £65 application fee for EU nationals wishing to apply for settled status, so there is no financial barrier for those wishing to stay in the UK post-Brexit. The PM added anyone who has already applied will have their fee reimbursed.
This will be good news for EU nationals working in the UK, but employment lawyers warn consultants need to tread carefully so as not to cross the line into immigration advice when providing updates to EU nationals on their books about Brexit.
Laura Darnley, business immigration specialist and employment solicitor at HRC Law, told Recruiter this is because immigration advice is regulated in the UK and agencies giving immigration advice or providing immigration services that aren’t regulated could be committing a criminal offence under the Immigration and Asylum Act 1999, with penalties ranging from up to two years in prison or a fine.
Darnley explains that in most cases only members of the Office of the Immigration Services Commissioner (OISC), the regulator – or those from 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.
Meanwhile Annabel Mace, immigration specialist and partner at law firm Squire Patton Boggs, told Recruiter it is important to know how the OISC defines immigration advice.
According to an OISC’s practice note, this is defined as: ‘Organisations which publish, display or present general information about immigration policy and procedures, but do not relate this to individual cases, are not providing immigration advice which requires regulation. Publishing general information that might be applicable to many people is not considered immigration advice that requires regulation. People are giving ‘advice’ to someone if they provide an opinion on a course of action or a range of options a person might take based on the information they have provided.
Consequently, Darnley says that while it is understandable agencies will want to support workers with applications to stay in the UK post-Brexit, they should proceed with caution.
“There is a grey area between helping and advising, and while it may be tempting to hand-hold workers through this process, there’s a chance they’ll [recruiters] 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.”
Source - Recruiter.co.uk