Changes to Employing Foreign Nationals
Illegal Working
Employers who negligently hire illegal workers face strict penalties, with a maximum fine of £10,000 in respect of each illegal worker found to be in their employment. Those who knowingly hire illegal workers face an unlimited fine and a possible prison sentence of up to two years.
Employers must carry out thorough prescribed checks of new employees in order to protect themselves and repeat documentation checks annually for certain employees. Further information and support can be sought from Louise at Indigo HR – contact her on 07949 552403 or email louise@indigohr.com.
New Points Based & Five-Tier System
The UK's immigration laws are in the process of major overhaul. The proposals are part of a broad package of reforms to toughen Great Britain's border controls, increase enforcement activity and enhance joint efforts to tackle illegal immigration, between the UK Border Agency (an executive agency of the Home Office), the police and other government agencies.
Broadly, the Government's long-term intention is to reconcile most of the existing schemes under which overseas nationals can work in the UK, including the work permit scheme and the former Highly Skilled Migrant Programme, into a new merit-based points system.
The new system consists of five tiers:
Tier 1:
Highly skilled workers, for whom no job offer or sponsoring employer is required.
Tier 2:
Skilled individuals with proven English language ability who have a job offer, to fill gaps in the UK labour force, for example nurses, teachers and engineers.
Tier 3:
Low-skilled workers if they are needed to fill specific temporary labour shortages, for example construction workers for a specific project, or agricultural workers.
Tier 4:
Students.
Tier 5:
Youth mobility and temporary workers, for example people on working holidays or musicians coming to Britain to perform in a series of concerts.
Tier 1, which replaced the Highly Skilled Migrant Programme, is now in place (from 30 June 2008). It is expected that tiers 2 and 5 will be rolled out from the autumn of 2008, and tier 4 in the spring of 2009. Tier 3 has been suspended in the meantime because most low-skilled jobs are currently capable of being filled by EEA nationals.
Nationals from outside the EEA and Switzerland will need to score points under one of the five tiers to qualify to work in the UK and satisfy the visa service that they can make a positive contribution to the United Kingdom. Points will be awarded for objective criteria such as:
· qualifications,
· previous earnings,
· age and
· United Kingdom experience.
Only those with enough points will be able to get a visa.
All employers who wish to employ migrant workers under the points-based system will need to act as a sponsor for that worker (apart from Tier 1 highly skilled workers who have open access to the job market).
Employer Sponsorship
From Autumn 2008, employers who sponsor non-EEA or Swiss nationals to work in the UK will need a licence which will be valid for four years.
The sponsorship licence application must be made online to the UK Border Agency with a fee of £1,000 (£300 for small companies or less than 50 employees). Employers must also provide specified supporting documentation, showing that they lawfully operate in the UK and give an indication of the number of migrants they are likely to sponsor each year.
In addition to the licence fee, employers will have to pay a fee for a certificate of sponsorship for each non-EEA migrant that they wish to sponsor. The fee is expected to be around £170. The certificate of sponsorship will take the form of a unique reference number to be provided by the employer to its potential recruit, who will then be able to apply for entry clearance at the British embassy in his or her home country.
There is to be a new free-phone service for people to report individuals or organisations in breach of the immigration laws. Currently, complaints can be sent in writing, to the UK Border Agency.
The most fundamental change will be that work permits are to be administered by the Foreign Office rather than the Home Office. This will mean that work permits will have to be obtained at overseas embassies by the individuals who are seeking to work in the UK, rather than by employers through work permits (UK), as at present. Employers (and further education institutions) will, however, be able to sponsor migrants provided that they (i.e. the employers) obtain the necessary sponsorship licence. All applications will be processed in applicants' country of origin.
Employers will also need to nominate key personnel, including a Key Contact for
correspondence with the UK Border Agency and an Authorised Officer – a permanent, UK based employee responsible for ensuring the employer meets its duties as a sponsor. Once licensed, employers will have to comply with duties including
- record keeping – keeping a record of each sponsored migrant’s contact details and relevant immigration documents
- reporting duties – e.g. reporting to the UK Border Agency if a migrant worker is absent for work without authorisation for more than 10 days, is dismissed or resigns
- complying with the law – ensuring that sponsored migrants meet the criteria for the relevant immigration category and are likely to comply with the conditions of their leave in the UK
- co-operating with the UK Border Agency – eg providing information upon request and allowing inspectors access to monitor compliance.
Disclaimer – Indigo HR provides these details as help and support however, we do not assume legal responsibility for the accuracy of any particular statement. If you have specific views or situations which you wish to discuss we would be pleased to assist you.
Correct at July 2008