Legal: Employers face new responsibilities over migrants

THE GOVERNMENT introduced changes to the work permit system of allowing migrant workers to enter and work in the UK on November 27, 2008.

This new system creates substantial changes for employers and migrant workers alike. It involves points scoring to determine whether the migrant worker can gain entrance and permission to remain within the UK.

Penalties​

It aims to place more responsibility on employers and, in turn, make the process for bringing migrant workers to the UK easier.

When employing migrant workers, employers need to be aware of the potential penalties of getting it wrong. If the correct process is not followed and an employer ends up taking on an illegal migrant worker, the employer could potentially be fined up to £10,000.

Existing Permits​

The new system does not affect the status of work permits that have already been issued, however, it now won't be possible to extend work

permits or grant new work permits under the old system. Employers will have to be ready to change to the new system when either applying for new migrant workers to come to the UK or when renewing existing arrangements.

Tiers​

The government's new immigration system is based on a series of tiers.

Tier 1 came into effect on February 29, 2008.

Tiers 2 and 5 came into effect on November 27, 2008. Tiers 3 and 4 are currently suspended, as further consultation takes place with the government's Border Agency.

The tier system has caused confusion, as the tiers affect the process by which an application is made. However, in essence:

• Tier 1 is for highly skilled individ-uals, investors and entrepreneurs. Applications under Tier 1 are made by the migrant worker before

entering the UK

• Tier 2 is for skilled workers with a job offer and is the area which will be of main concern to employers under the new changes

• Tier 3 is for low-skilled workers to fill temporary labour shortages. It is currently suspended for the

reasons explained above

• Tier 4 is for students. It is also

currently suspended as explained above

• Tier 5 is for the government's Youth Mobility Scheme and Temporary Workers. Only the youth mobility scheme is likely to apply to the leisure/pub industry, so the

temporary workers scheme is not discussed further in any explanations below.

Sponsorship​

Tier 2 is the main area introduced from November 27, 2008. This tier operates on the basis of an employer 'sponsoring' a migrant worker's

application to enter the UK. The employer must first apply for a licence, issued by the Border Agency, so that they can, in turn, issue certificates of sponsorship.

The licence application requires employers to send documentation to support their eligibility to employ individuals in the UK. Employers must also meet suitability criteria. These are that the employer has:

• effective human resources systems in place

• not received a civil penalty for immigration offences

• personnel appointed to operate the sponsor system, who do not have any criminal convictions

• no evidence of previous non-

compliance by the employer.

Once the employer has been through the licence process and obtained their licence, they can start to issue potential migrant workers they wish to employ with sponsorship certificates.

Before issuing a sponsorship certificate to potential migrant workers, the employer must ensure that:

• the job which the migrant worker will be employed to do is at a skill level of S/NVQ Level 3 or above

• the job has passed the resident labour market test or is on the shortage occupation list or is an intra-company transfer. The resident labour market test will be of most concern here, as the employer will have to go through a process of advertising the position. There is extensive guidance from the Border Agency on this process - it is not simply a case of sticking an advert in the local newspaper

• the migrant worker must be paid a salary or allowance at the appropriate rate.

Points-based assessment​

Once the employer has leapt over all these hurdles, the sponsorship certificate can be issued to the migrant worker who can then apply for entry clearance. To obtain this clearance the migrant worker also has to pass an objective test and achieve sufficient points.

The potential employee must obtain at least 50 points for their attributes. This includes points for qualifications, prospective earnings and that the job being applied for has passed the resident labour market test mentioned above. The migrant worker must then also have sufficient points for their proficiency in the English language and for available funds to maintain themselves while in the UK.

Youth Mobility​

The Youth Mobility Scheme was also introduced on November 27, 2008. This enables nationals between the ages of 18 and 31 of particular countries (currently Australia, New Zealand, Canada and Japan but the list is due to be expanded) to come to the UK and work for a period of up to 24 months. This scheme relies on the basis of an individual being sponsored by their own country of nationality to come to the UK and again, the worker must meet a set of objective points criteria.

Conclusion​

This new system is particularly complicated and fraught with potential difficulties for the employer.

To avoid the potential liability of penalties, it is important for employers to make sure they have the appropriate processes in place to register as a sponsor and that sponsorship certificates are only being issued in appropriate circumstances.