Opinion: Migrant workers and changes in the law

During this economic downturn, the selection of non-UK workers for domestic jobs has become more controversial, and in this multi-national...

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 the sponsor

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 for employers

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 at Cheyney Goulding LLP

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