During this economic downturn, the selection of non-UK
workers for domestic jobs has become more controversial, and in
this multi-national world, a good system of immigration control was
clearly needed, writes Karen Grant.
The recent changes to the UK Border Agency's points-based
immigration system provide some provisions to ensure that local UK
workers have the first chance to apply for vacancies, but what are
the legal implications of the new system to an employer?
Checking an employee's right to work in the UK
Since 27 January 1997, UK employers have had a responsibility to
check whether their employees are legally entitled to work here. A
well controlled and monitored system within the workplace has been
necessary to ensure that an employer does not fall foul of the
legislation. The recent revision of the laws on preventing illegal
migrant working has provided the biggest shake-up of immigration
controls for more than 45 years, and now features a points-based
system.
The points-based system
The system consists of fivetiers, and each tier has different
requirements.The points required may be adjusted by the government,
according to local market and economic conditions.
Employers must have athorough understanding of the new system,
with robust internal proceduresand a system for keeping abreast of
ongoing changes.
Hiring skilled workers from abroad
The points-based system has raised the standards that migrant
applicants must meet to gain permission to work in the UK, most
notably within certain categories in Tiers 1 and 2.
Tier 1 is divided into foursub-categories, including Tier 1
general, which replaces the Highly Skilled Migrant Programme. The
other sub-categories are entrepreneur, investor and post-study. The
intention is to permit entry to those migrants who have most to
contribute to the UK's economy.
From 31 March 2009, migrants wishing to enter the UK under Tier
1 general must, among other requirements, have been educated to the
equivalent of a UK masters degree and earned a salary of £20,000
within 12 consecutive months out of the15 months preceding the
application. Migrants applying under Tier 1 are exempt from the
need to be sponsored by a UK company.
Tier 2 effectively replaces the old work permit system. An
employer seeking to recruit under Tier 2 (general) must be able to
show that they have attempted but failed to find a resident worker.
To demonstrate this, the job must be advertised in the manner and
media set out in the codes of practice. In addition, the employer
must apply to the Home Office to register as a licensed sponsorso
that they can provide a Certificate of Sponsorship to the
applicant. Certain specific duties are imposed on licensed
sponsors.
Sports people and ministers of religion come under Tier 2 in
specialist sub-sections.
The other tiers are Tier 3 -low skilled workers (suspended);
Tier 4 -students; Tier 5 - temporary workers.
Duties of thesponsor
Although there are clear benefits to the points-based system,
there is nonetheless an administrative burden on companies
whichhave to apply for a Sponsorship Licence. The general duties
include record keeping and reporting, as well as legal compliance
and cooperation with the UK Border Agency. This will be easier for
those with established HR functions than less structured or smaller
companies.
In terms of payroll and related processes, there are certain
sponsor duties that must be carefully followed. The Home Office
will look at the internal processes of the company in detail to
make sure that they are able to carry out their duties
properly.
Whether the company is largeor small,it must be a genuine
organisation or a sole trader operating legally in the UK. The
history and background of the company and key personnel is reviewed
by the Home Office.
Shortage occupations
The Migration Advisory Committee is tasked with designating
"shortage occupations" and reviews the list regularly. If the
migrant applicant's job is on the shortage occupation listthey will
not need to achieve points. If the job is not on the shortage
occupations list, the employer, before seeking to recruit from
outside the UK, must complete a resident labour market test and
show that no suitably qualified worker in the UK can fill the
job.
Penalties foremployers
Both civil and criminal penalties may apply.The civil penalty
for an employer is a maximum of a £10,000 fine per illegal worker.
However, knowing that a worker is illegal constitutes a criminal
offence and can lead to an unlimited fine or up to two years'
imprisonment.
Assessment of the new system
So far, general feedback on the new system has been largely
positive.
A key advantage for companies whichuse (or plan to use) a
significant amount of immigrant labour is the ability to issue
certificates as a licensed sponsor, rather than waiting for work
permit applications.This can result in significant timesavings. The
Sponsorship Licence issued for a migrant worker is a "virtual
document" (a unique reference number). Although it might sound
complicated, this process is less time-consuming than going through
a work permit application process.
Only time will tell how far the points-based system will go to
meet the needs of UK employers.
Karen Grant is a solicitor atCheyney Goulding LLP