UK businesses using international talent should be aware that an ETA or immigration permission may be refused or could be cancelled after grant. This article considers some of the main issues that can cause problems, the resulting contract risk and how to reduce it.

UK businesses should take care not to assume that international talent will be able to enter or stay the UK to fulfil obligations that require their physical presence here, even if they hold an Electronic Travel Authorisation (ETA) or immigration permission. This could include entertainers and other creative workers, sportspersons, business executives and other key personnel needing to come to the UK either for short or longer-term purposes. 

For example, if an individual is convicted of a crime or breaches their immigration conditions, their ETA or immigration permission could be cancelled. 

Additionally, the Home Office could take a view at any time that an individual's presence in the UK is not conducive to the public good. This could be due to something the individual has done or said after they've been granted an ETA or permission, or it could be due to historical conduct, character or associations that have come to the Home Office's attention. 

If the individual can't fulfil their obligations this could result in breach of contract, financial losses, reputational damage and legal disputes. 

What's the difference between an ETA and UK immigration permission?

An ETA is a pre-entry authorisation for eligible nationals who intend to enter the UK to visit, transit (landside only), or undertake temporary work in the UK for up to 3 months under the Creative Worker Visa Concession. Please see our separate article for more information about the UK's ETA scheme.

UK immigration permission is permission to enter or stay in the UK, which is granted by:

• An entry clearance officer, for entry clearance (including visas for visa nationals who must obtain immigration permission in all cases before travelling to the UK);
• UK Border Force, for permission granted on arrival in the UK (including for individuals who hold an ETA);
• The Home Office, for permission to stay applications made inside the UK.  

Grounds for ETA refusal and cancellation: criminality, non-conducive and immigration breach

Under the Immigration Rules there are various different refusal grounds for ETA, but the most common grounds in practice are:

• Criminality;
• A person's presence in the UK being not conducive to the public good; and
• Previous breach of UK immigration laws. 

The cancellation grounds for ETA effectively mirror the refusal grounds. 

Criminality ground

An application for an ETA must be refused, or an existing ETA must be cancelled, where the applicant or ETA holder has:

• A conviction for a criminal offence in the UK or overseas within the last 12 months; or
• A conviction of a criminal offence in the UK or overseas at any time in the past, for which they have received a custodial sentence of 12 months or more.

Non-conducive ground

An application for an ETA must be refused, or an existing ETA must be cancelled, where the Home Office considers that an applicant's presence in the UK is not conducive to the public good because of their conduct, character, associations or other reasons (including convictions which do not fall within the criminality grounds).

This concept of 'not conducive to the public good' is a broad one, providing something of a catch-all refusal and cancellation ground for the Home Office to rely on. 

Previous breach of immigration laws

Subject to specific exceptions (mainly relating to short overstays and/or subsequent permission grants), an ETA must be refused, or an existing ETA must be cancelled where a person aged 18 or over: 

• Has previously overstayed their UK immigration permission;
• Has breached an immigration condition (e.g. by working unlawfully or by claiming prohibited public funds);
• Is (or has previously been) an illegal entrant; or
• Has used deception in a UK immigration application. 

Grounds for refusal and cancellation of immigration permissions

The Immigration Rules concerning permission to enter or stay in the UK also contain various grounds upon which an individual's entry clearance or permission to enter the UK must or may be refused or cancelled. 

The refusal and cancellation grounds for immigration permissions are not completely aligned with those for ETA, and there is the possibility of the Home Office granting or maintaining permission in exceptional circumstances. However, the broad principle still applies – issues such as criminality, poor conduct or a failure to observe UK immigration laws can lead to permission being refused or cancelled. 

How can your business reduce immigration-related contract risks?

It is important to proactively address the possibility of immigration-related non-performance in your contractual arrangements with international talent. This might include:

• Seeking early immigration advice before any applications for an ETA or immigration permission are made;
• Including specific provisions in your agreements that allocate the risk of refusal such as properly tailored force majeure clauses and/or contingency plans;
• Stipulating in your agreements that individuals must seek legal advice and ensure their eligibility for an ETA or visa well in advance of the date on which they must fulfil or start fulfilling their obligations to you;
• Exploring insurance options or negotiating contract terms that exclude or limit financial exposure; and
• Seeking legal advice before taking any action in relation to an individual who can't fulfil contractual obligations due to being unable to enter or stay the UK. 

Our complex cases service

At Lewis Silkin, we offer a complex cases service, which combines our expertise across immigration, commercial law and dispute resolution. The service provides a comprehensive strategy for assessing and addressing the immigration, commercial and disputes issues that can arise where an individual is ineligible for an ETA, or where an ETA or immigration permission may be refused or cancelled.

If you would like information on how this service can help you, please contact a member of our Immigration team in the first instance.