By Mark Ellis

At the end of this month we expect to see the introduction of the government’s points-based immigration system which replaces the work permit scheme.

How it will affect your business? This article will, I hope, help! For extra help I recommend that you log on to our free webinar (an online seminar, no need to leave the office) on the subject on 4 December 2008 at 10 am. To reserve your free place visit www.elliswhittam.com


Introduction

On 29 February 2008 the government introduced its points-based system. The system consists of a 5 tier framework under which all migrants wishing to enter the UK to study or work will need to apply to gain clearance to live and work in the UK. The tiers are as follows:

Tier 1: Highly skilled individuals

Tier 2: Skilled workers with a job offer to fill gaps in the UK labour force;

Tier 3: Limited number of low-skilled workers to fill temporary labour shortages

Tier 4: Students

Tier 5: Youth mobility and temporary workers

Tier 1 came into force on 29 February 2008, and Tiers 2 and 5 came into effect on 1 November 2008. At present there is no plan to introduce Tier 3.
Migrants applying under the points-based system will be given a series of points on criteria such as their age, qualifications, their prospective earnings, English skills and, controversially, whether they have sufficient savings in their bank accounts.

The tier likely to affect most companies is Tier 2 as any migrant worker from outside the EEA who is offered a skilled position, which requires a qualification of NVQ level 3 or higher, will need to apply under Tier 2 in order to undertake the job in question.

However, the catch for employers is that in order to employ anyone from outside the EEA you will need to be a registered sponsor with the UK Border Agency. If you are not a sponsor you cannot employ anyone from outside the EEA, from 1 November, without breaching the UK’s new immigration rules.


Sponsorship

Any company wishing to employ migrant workers under Tier 2 after 1 November 2008 will need to submit an online application to the UK Border Agency. Once the application is received, you will be allocated a compliance officer who will visit the company to assess whether or not you will qualify to be a registered sponsor.

In order to be a sponsor, a company must show that they:

• are a UK based employer;

• have individuals allocated to be responsible for immigration and sponsorship matters;

• have not previously fallen foul of immigration rules; and

• are able to comply with the sponsorship duties.

Once employers are registered the UK Border Agency will allocate the employer with the number of certificates it deems appropriate for the employer to have.

The certificates are merely a number rather than a physical document and can only be used once.

Currently applications are taking 4-6 weeks, however this may change and therefore it is advisable to apply as soon as possible if you believe you may at some point want to employ migrant workers from outside the EEA.


Recruiting

Once an employer is listed as a registered sponsor and issued with the certificates it can commence recruiting migrant workers from outside the EEA, however there are a few things to be aware.

Employers will only be able to offer a job to a migrant worker if the job satisfies the resident labour market test, unless it is a job listed on the National Shortage Occupation List available on the Border and Immigration (BIA) website.

The resident labour market test requires that the job vacancy has been advertised to settled workers. If the salary for the job is £40,000 or under, you must advertise it for a minimum of two weeks. If the vacancy is over £40,000, you must advertise it for a minimum of one week. The job must also be advertised in accordance with the relevant code of practice specific to the type of sector or job (the codes of practice are due to be placed on the BIA website soon) or where there is no code of practice, at Jobcentre Plus.

It should be noted an employer cannot refuse to employ a settled worker due to lack of qualifications, skills or experience if they were not clearly set out in the job advert.

Once the resident labour test has been satisfied, or the job has been identified on the labour shortage list, the employer can issue to the migrant a certificate. The migrant will need the certificate in order to apply under the points based system to gain entry as this will contribute towards their points score.

A key point to note here is that a certificate can only be used once, therefore if the migrant is unsuccessful the certificate will not be able to be passed to another migrant; it will become null and void. Thus it is important to undertake a self-assessment of the employee before issuing the certificate to see whether they are likely to be successful in their application to avoid wasting valuable certificates. This can also be done on the BIA website which is www.bia.homeoffice.gov.uk


Existing Employees on Work Permits

Those employees who are from outside the EEA and working under a work permit are able to continue to work under that permit; however once it has expired they cannot apply for an extension and will instead need to apply under the points-based system. Therefore employers who currently have employees on work permits may need to assess when those work permits are due to expire in order to apply for sponsorship in sufficient time to then enable to employee to apply under the points system to remain in their current position.

Those already in the UK will not need to meet the same requirements as someone coming into the UK as they will receive points automatically for English language ability and they will not need to provide evidence of maintenance, however the problem will be that employees under work permits whose jobs are low skilled or require below a NVQ level 3 qualification will not be able to apply under the points system to remain and will in effect not be permitted to work in the UK.


Sponsorship Duties

Becoming a sponsor places a burden on the employer in that the sponsor must agree to keep various records on file for all employees, and is also required to undertake new reporting duties.

The reporting duties require a sponsor the contact the UK Border Agency within 10 working days when:

• a migrant employee fails to turn up for the 1st day of work;

• a migrant employee is absent without authorisation for 10 days or more;

• the sponsor stops sponsoring the individual.

Obviously this places a great burden on a sponsor as failure to comply can result in the loss of their sponsorship.


Failure to Comply with the Points-Based Scheme

The Immigration, Asylum and Nationality Act 2006 came into force on 29 February 2007 and introduced both a criminal penalty and a civil penalty for employing an individual who is subject to immigration control.

The criminal penalty is applied to anyone who is knowingly employing an individual subject to immigration control who has not been granted the right to remain in the UK or whose leave has expired. The consequence is a term of imprisonment not exceeding 2 years and/or a fine.

The civil penalty is where someone is found to be employing an individual who is subject to immigration control. The difference here between the civil and criminal penalty is knowledge.

In order to avoid falling foul employers should undertake the necessary documents checks as set out on the BIA website for all employees.

Mark Ellis is an employment law solicitor and CEO at Ellis Whittham - Find out more www.elliswhittam.com