As an in-house lawyer, you oversee a multitude of legal issues. This can include the complex area of immigration. In today's global economy, managing immigration matters efficiently is crucial for businesses to thrive. Yet, many legal teams find themselves navigating a labyrinth of Immigration Rules.
While managing immigration matters as an in-house legal team can seem efficient, several potential pitfalls can derail the process. Here are six common pitfalls for immigration matters, tips on how to avoid them, and where engaging an immigration lawyer could be a strategic advantage.
The "it's just paperwork" misconception
Immigration laws are intricate and continually changing. Each visa category has unique requirements. Many in-house legal teams can fall into the trap of underestimating the complexity of the rules relating to immigration matters.
Underestimating the complexity of immigration work can lead to costly mistakes. For example, if a company makes an error on a visa application or the Home Office requests additional information, the process could be delayed by several weeks.
If an additional Certificate of Sponsorship (CoS) allocation is required, it can take up to 18 weeks to process. An expedited processing is available for £500 for a 5-working-day turnaround, securing a priority slot as part of this process is challenging since the Home Office only accepts 60 priority requests per day, making the 5-day timeframe often unrealistic.
The "I'll just wing it" hazard
Handling immigration without a structured approach is risky. This "I'll just wing it" to immigration matters poses several significant risks, some of these include:
- Missed deadlines for visa applications, renewals, or compliance reporting can result in expired visas or lapses in legal status.
- Documentation errors, such as incomplete or incorrect forms, can lead to application rejections or legal issues.
- Increased costs may arise from expedited processing fees, legal fees, or fines for non-compliance.
- Legal complications, including deportation or difficulties in future visa applications, can occur due to non-compliance.
- Operational disruptions can impact project timelines and productivity, especially for businesses managing employee relocations.
- Failing to comply with changing immigration laws and regulations can lead to compliance risks that affect a company's ability to operate or employ international talent.
- Managing immigration issues reactively can increase stress for individuals and HR teams, potentially leading to reduced efficiency and burnout.
- Reputational damage may occur if poor immigration management leads to significant delays or legal problems, affecting relationships with employees and clients.
A well-organised, structured, and proactive approach is vital for mitigating these risks and ensuring smooth operations.
Imagine a UK-based company is handling its immigration processes internally. The internal team, pressured by tight deadlines, decide to "wing it" rather than following a structured process. They proceed with visa applications and manage the Certificates of Sponsorship (CoS) and Immigration Skills Charge (ISC) without thorough oversight or adherence to best practices.
In their rush, the company opts to pass on the Home Office fees for CoS and the ISC to the employees, assuming it's a common practice and a quick solution to save costs. However, this approach has two significant pitfalls.
1. Clawing back fees and potential licence revocation:
The company later realises that charging employees for these fees contravenes immigration rules stipulating employers bear these costs. Employees, feeling unfairly treated, raise concerns, leading to a compliance investigation. The Home Office identifies the violation and issues a penalty. Additionally, the company is required to refund the fees to the employees and potentially compensate them for any inconvenience caused. If the violations are deemed severe, the Home Office could revoke the company's sponsor licence, jeopardising the company's ability to hire and retain international talent.
2. Administrative errors and delays:
Due to their ad-hoc approach, the team makes several errors in the CoS applications, such as incorrect job titles or salary details. These mistakes lead to delays in visa approvals. For example, a key project manager's visa is delayed by several weeks, disrupting the project timeline and causing operational challenges. The company incurs additional costs for expedited processing and faces productivity setbacks, all because of inadequate internal handling.
This example underscores the risks of a reactive, unstructured approach to immigration management.
The "overlooked integration" misstep & "why plan ahead?" pitfall
Reactive immigration management can be stressful and often ineffective.
For example, a Managing Director is to be transferred from an overseas branch to the UK headquarters on short notice. If the immigration process is managed reactively, the company may face delays due to missing documents, overlooked eligibility requirements, or unanticipated legal hurdles. As a result, the senior employee's transfer could be delayed, causing project setbacks, additional legal fees, and stress for everyone involved.
A proactive approach can prevent situations like this from becoming stressful and ineffective. Planning demonstrates the value of the legal team to the rest of the business. By aligning immigration needs with the business goals during strategic planning, you will be much more effective in managing immigration matters.
An immigration lawyer can assist in developing a comprehensive strategy, anticipating potential issues and providing solutions in advance. Legal teams can also prevent this by establishing clear internal policies, and ensuring HR teams understand timelines and visa procedures. Engaging in proactive workforce planning will help anticipate future immigration needs, and begin processes earlier. Centralised tracking systems can also be implemented to monitor visa expirations and application status.
Integrating immigration processes into your overall business strategy and goals is crucial for cohesive operations. Developing a comprehensive immigration strategy in advance will not only ensure smoother operations but highlight the value of the legal team.
The "internal only" fallacy
While the legal team is a powerhouse, relying solely on internal resources for immigration matters can be limiting. As mentioned, immigration law is complex and constantly evolving. This can make it challenging for in-house legal teams to keep abreast of all the changes.
While internal efforts are crucial, incorporating external expertise is advantageous. Immigration lawyers offer in-depth knowledge and understand nuances that might be missed by generalists, ensuring a more comprehensive approach to managing immigration issues. Bringing in external support can complement your internal resources.
The "just tell them what they need to know" oversight
Many companies think that it's enough to just tell employees the basics. But not communicating effectively with thorough, clear guidance can lead to confusion, anxiety, and even compliance issues.
For example, if an employee enters the UK while their entry clearance visa application is still pending, they may not realise they need to leave the UK and re-enter to activate their work visa once approved. In contrast, for extension applications submitted within the UK, the employee must remain in the UK until a decision is made, as leaving the country could lead to the withdrawal of their application. Without proper guidance, the employee could inadvertently jeopardise their visa status, creating stress and potentially impacting their job performance.
Personalised communication also helps in addressing cultural sensitivities and unique concerns, ensuring that employees fully understand their status and obligations. Creating a workplace where employees are well-informed and confident can significantly enhance productivity and job satisfaction. External counsel can be instrumental in supporting this communication. Immigration lawyers offer tailored guidance ensuring both employers and employees grasp the rights and responsibilities fully. This comprehensive support helps prevent misunderstandings so employees are well-prepared to navigate immigration matters, ultimately fostering a more informed and secure work environment.
The "training and compliance" gap
With ever-changing regulations, immigration compliance requires ongoing training to stay current. With so much on their plates already, it can be hard for in-house legal teams to keep up with training.
Without proper training on immigration matters, in-house legal teams might miss critical updates or misinterpret regulations. This leads to non-compliance, increasing the risk of penalties from the Home Office or revocation of their sponsor licence.
To ensure you stay current on immigration matters as an in-house legal teams, you can take several proactive steps:
- Attend conferences and seminars focused on immigration law to gain insights from experts.
- Leverage industry resources from organisations for updated training and publications i.e. Home Office resources
- Subscribe to newsletters and alerts from reputable immigration law firms for timely updates, such as freemovement, the3million and The Joint Council for The Welfare of Immigrants
- Collaborate with external experts for regular consultations and advice.
- Implement regular internal reviews and audits to align procedures with current regulations.
Simple measures such as creating a compliance calendar and regular reviews of policies and procedures help to eliminate risks. These measures help in-house teams manage compliance effectively and reduce the risk of penalties.
Key takeaways on handling immigration for in-house legal teams
Managing immigration matters in-house comes with challenges that can impact a company's operations, compliance, and overall efficiency. These key pitfalls discussed – from underestimating the complexity and taking a reactive approach to neglecting external expertise and ineffective communication — highlight the multifaceted nature of immigration management.
Avoiding these pitfalls requires legal teams to create a proactive and well-organised strategy. Continuous training and development, coupled with a structured approach to immigration management, can mitigate risks and enhance efficiency. Similarly, leveraging external counsel for complex issues, staying updated on regulatory changes, and fostering a comprehensive understanding within the organisation will support better decision-making in the evolving landscape of immigration law.
Ultimately, a strategic, informed approach to immigration matters not only prevents costly mistakes and operational disruptions but also contributes to the overall success and adaptability of the business in a global economy.
This article was written by Samia Yaqub (Senior Immigration Manager) at IBB Law. IBB
Law is an award-winning, full-service, regional law firm with
national reach. With 4 offices in the Thames Valley, Heathrow and
Buckinghamshire, the firm is perfectly placed to support businesses
and individuals both regionally and across the UK.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
