Employment law update
with their child, in order to make a Visa application.
The normal immigration rules could not
apply because the child was already in the UK and the sponsoring parents were not deemed as settled or British. An application was made based on
Article 8 Right to Family Life (ECHR). This is an unusual route outside of the rules, but because of the compelling compassionate circumstances, this was used to enable the argument it was in the son’s best interests and welfare, and important to avoid disrupting his education.
Both the UK Supreme Court and the European Court of Justice case law confirms that a child is entitled to family life with parents, and that the rights of children are of paramount importance, as stated in Article 8 of the ECHR. The application was successful and
acknowledged that a refusal in these circumstances would be a severe breach of the son’s right to a family life, and the child was granted leave to remain with his parents in the UK.
Other options Businesses wanting to recruit a foreign worker or workers from abroad have several visa optionsthat allow people from abroad to work in the UK. These include employer- sponsored visas, unsponsored visas, charity worker visas, and temporary visas, which are available for seasonal workers and allows people to stay in the UK for up to six months. As previously explained, any care sector business looking to hire from abroad must first apply for and have approved a UKVI sponsorship license, and select the specific Health Care Worker Visa. The same applies when employing foreign workers already in the UK. Only if the license is approved will the business be entitled to employ workers from abroad.
Digital switch Last year, UKVI announced the plan to move to eVisas. In preparation, all immigrants currently holding some form of status in the UK but not yet British Citizens, or those granted status under the EU Settlement Scheme who should already have an E-Visa, need to switch to an E-Visa as proof of their status. Everyone currently having a Biometric Resident Permit, or BRP, card, wet ink stamp in a passport, or another form of proof that is not an E-Visa, must create an E-Visa as soon as possible.
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The HCW visa has certain benefits over the normal skilled worker route
The digital switch was originally set for midnight on 31 December 2024. However, on 4 December, UKVI seemingly bowed to pressure and issued a statement advising that as an additional safeguard, BRP and BRC holders should keep their old cards that expire on or after 31 December 20024 and continue to carry these when travelling internationally. The E-Visa digital switch is due to be reviewed again soon. As well as individuals, there are implications for organisations employing foreign workers. For the past few years, employers have had to carry out a ‘right to work’ check using the UKVI online employers checking service. Employers must understand that their workers will no longer have a physical card or other hard copy evidence of their right to live and work in the UK and that all proof of status will be online.
Once an E-Visa is created, it remains the responsibility of the individual to check their details are up to date, including updating any new passport details before travelling. As an additional safeguard, UKVI advised BRP and BRC holders to keep and continue to travel internationally with their old BRP/BRC cards until 31 March 2025.
Currently, people granted entry
clearance will still get a vignette sticker in their passports to allow travel to the UK within a certain time-window, after which they must create an E-Visa either immediately or when they arrive in the UK. Those granted status under the EU Settlement Scheme should already have an E-Visa, but it is advisable for EU nationals to access their online account to check their status.
As with the roll-out of any large digital scheme, there may be teething issues. It is the responsibility of each individual to report any errors encountered during their own e-Visa application process. This is easy to do using to the dedicated page on the UKVI website (
www.gov.uk/report-error- evisa).
As a result of the planned switch to digital, UKVI has ceased the issue of new BRPs since October 2024 to new customers in anticipation of the move because of the limited value to customers of providing
a physical document valid for a very short period of time.
Right to appeal
Many visa applications do give a right to appeal if they are refused. However, some applications, such as the visitor visa route, offer no right of appeal, and the only way of challenging it is by a Judicial Review. Points-based visa applications, including
skilled worker visas and health care worker visas, only have a right to administrative review where the application is looked at again to determine if the application was refused due to an error by the decision maker. No new documents or supporting statements can be used for this, unlike in an appeal.
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André Minnaar
André Minnaar is a partner and head of the immigration team at Midlands law firm Sydney Mitchell. Recognised as the only leading partner in his area of expertise by the Legal 500 publication Best Lawyers ranking for individual areas of expertise, André has extensive experience in every area of individual and business immigration, including and not exclusively overturning UKVI visa refusals, complex long residence applications, de facto adoption applications and appeals, asylum claims and entry clearance matters. Founded over 260 years ago and with offices in Solihull and Birmingham, Sydney Mitchell LLP’s specialist team portfolio spans employment, commercial property, company and commercial services, litigation, insolvency, family law, residential property, dispute resolution, immigration, wills and probate, tax and trusts, and personal injury.
www.thecarehomeenvironment.com May 2025
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