| IMMIGRATION SYSTEM
OVERHAUL |
The Government
heralds "the biggest shake-up of the immigration system in it's history."
2008 will be a year of unprecedented change for employers and the employment
of overseas workers. Employers will need to review their recruitment practices,
introduce ongoing checks and get to grips with new immigration categories
and requirements. All businesses should take this opportunity to carry
out a thorough audit of their compliance with the immigration rules and
assess the potential impact of higher levels of enforcement on immigration
matters. If
a business ignores the rules or doesn't implement them fully, it could
be facing fines of £10,000 and terms of imprisonment for those responsible.
What are the changes?
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The
introduction of a points-based system to replace all current immigration
categories covering working and studying in the UK.
As the Government has outlined previously, the new immigration system
will work around a five-tier framework. The five tiers will be:-
| ° |
Tier
1 - Highly skilled (and high value) individuals: this broadly
corresponds to the current Highly Skilled Migrant Programme
but will also include provision for additional highly skilled
and high value individuals such as investors and business persons. |
| ° |
Tier
2 - Skilled workers with job offers: this corresponds to the
current work permit arrangements |
| ° |
Tier
3 - Low skilled workers: as designated and allowed for by the
Government |
| ° |
Tier
4 - Students |
| ° |
Tier
5 - Youth, mobility and temporary workers |
Outside of Tier 1, applicants will require a sponsor. In the employment
arena this will be the employing business. |
• |
A
requirement for employers of non-EEA workers to be registered as "sponsors"
under the new system.
Businesses intending to employ non-EEA nationals will generally have
to become a licensed sponsor. As a licensed sponsor, the business
will then need to provide a Certificate of Sponsorship to individual
workers, in order for them to apply to come to the UK to take up employment
(or switch in-country). A sponsor's license will be renewable every
four years.
The sponsorship system will include provision for a sort of immigration
'credit-rating' as employers will be rated as A or B level sponsors
depending on the risk they represent. There will also be warnings
and formal action plans to ensure that businesses are capable of complying
with the immigration rules and that any failings are being remedied.
This system will work alongside the new penalties and fines regime.
If a business is not a licensed sponsor, it will not be able to bring
in non-EEA overseas labour. Additionally, a business which was not
a sponsor previously, but acquires another business that includes
non-EEA overseas labour, must become a licensed employer within 28
days of taking over the new business.
As a sponsor, a business will have responsibilities including promptly
informing the authorities when the employment of a sponsored worker
has come to an end. |
• |
New
rules on the "right to work" checks required by employers,
including regular follow-up checks.
The Government has produced a draft Code of Practice to replace the
existing Code of Practice on the checks required to be carried out
by employers to prevent illegal migrant working. These are the checks
that all businesses must carry out on all new starters and are unrelated
to the new points-based system and issues of sponsorship.
The rules under the new Code of Practice will be similar to the existing
rules where documents are required from two lists (List A or List
B) depending on whether the individual has a permanent right to live
and work in the UK or not. However, in a change from the current rules,
where an individual has limits on their time and ability to work in
the UK, the employer is required to carry out follow-up checks at
least once every 12 months after the initial check. These checks must
continue throughout the employment. It will also be clear that an
employer will lose the protection of the checks they have carried
out if at any stage during the employment, they know an individual
is an illegal migrant worker, despite their documentation.
In addition to these aspects directly affecting employers, the Government
is also introducing identity cards for all foreign nationals and the
inclusion of biometric information during the application process
for all work and study visas in the UK. Additionally, visitors to
the UK, which will include business visitors, who do not have to apply
for a visa in advance of coming to the UK, will have their fingerprints
taken to create a single immigration identity and allow for key borders
to track people in and out of the UK. |
• |
Higher
levels of enforcement and increased penalties.
Civil penalties are to be introduced for employers who are found to
be employing illegal migrant workers. These civil penalties can be
applied regardless of whether the employer knew an individual to be
an illegal worker or not. Additionally, the civil penalties will be
applied per illegal worker and the current proposals are that these
penalties could be anything up to £10,000 per worker. The fines
will vary according to whether the employer carried out the required
checks fully or partially and on other factors, including whether
the employer has reported any concerns over potential illegal workers.
Criminal penalties for knowingly employing illegal migrant workers
are also being stepped up and those responsible could be looking at
a 2 year prison sentence.
This will be combined with higher levels of enforcement through increased
resources and activity levels by the Border and Immigration Agency. |
The
Government is yet to release full details of the changes it is going to
make, but has set out the timeline for change and revealed a series of
statements to pave the way.
The Government intends to bring in the system to apply to Tier 1 - Highly
Skilled and High Value individuals - in the first quarter of 2008. However,
final regulations are yet to be published. Tier 2, targeting skilled workers
with a job offer and Tier 5 for youth, mobility and temporary workers,
should follow in the third quarter of 2008. The revised rules on employment
checks, civil penalties and new criminal offences are expected to come
into force from 29 February 2008.
Kelly
v The University of Southampton
The recent case of Kelly v The University of Southampton
is a reminder to employers that they cannot just dismiss an employee immediately,
and without thought, when they believe that continuing to employ them
will breach a statutory restriction, such as the right to remain and work
in the UK.
In this case Dr Kelly, a US citizen, was offered a post at the University
of Southampton. At the time overseas nationals were able to apply for
indefinite leave to remain if they had four years continuous residence
and work in the UK. She applied for leave to remain, but the University
were concerned that her existing leave to remain had expired and dismissed
her without warning, hearing or right of appeal.
The Employment Tribunal found that she had been dismissed because to continue
to employ her would contravene a statutory enactment. On appeal however
the EAT found that she was in fact still permitted to work under the immigration
rules, but that even if that had not been the case the manner of the dismissal
was not reasonable. The EAT found that even if it would be illegal to
continue to employ an individual, the employer must still consider the
surrounding circumstances. For example: did the illegality result from
the employers act? Could the position be simply remedied? This is a warning
to employers that it will not be automatically reasonable to dismiss an
employee where to continue to employ them would breach a statutory enactment,
it is key that all the circumstances are properly considered.
On 26 Ferbruary (London)
and 28 February (Cambridge) the Charles Russell Immigration team is hosting
workshops to take employers through the new provisions. These sessions will
provide practical guidance on how to ensure compliance. More details to
follow soon.
For more information about our Employment
& Pensions Team please contact Jo Wort at joanna.wort@charlesrussell.co.uk
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