Important changes to UK Immigration rules.

The UK immigration rules are undergoing significant changes during the course of 2008 and 2009 with the introduction of a points-based system ("PBS") for allowing nationals of countries outside the EEA to live and work in the UK. Under the PBS, only those individuals scoring the requisite number of points will be entitled to enter the UK in order to live and work.

Points will be awarded to the individual based on criteria including the migrant's level of academic qualifications, his or her previous earnings, the level of savings that the migrant has at his or her disposal, his or her age and his or her aptitude in speaking English.

The PBS will introduce 5 "tiers" of migrant worker (with each tier split into various sub-categories) and the required number of points under each of the tiers and within their sub-categories will be different. The five new tiers are as follows:

Tier 1 - highly-skilled individuals who contribute towards growth and productivity;

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

Tier 3 - low-skilled workers to fill specific temporary labour shortages;

Tier 4 - students;

Tier 5 - youth mobility and temporary workers.

The PBS was introduced for the "General" sub-category of Tier 1 workers on 29 February 2008 and is due to come into force for other Tier 1 sub-categories as well as Tiers 2, 4 and 5 at different stages throughout 2008 and early 2009, although as yet there are no fixed dates. Tier 3 is currently on hold, since the Home Office believes that job vacancies falling within this tier will be able to be filled by EEA nationals entering the UK, particularly from the accession states which include Poland and Bulgaria.

Sponsorship

Around the same time as the PBS comes into force, the sponsorship regime for UK employers will also be introduced. This is by far the biggest change that employers will need to get to grips with. When the scheme is introduced, only those employers who hold a "sponsorship licence" will be eligible to employ migrant workers who fall within Tiers 2 to 5 and separate sponsorship licences will be required for those tiers. No sponsorship licence will be needed to employ Tier 1 workers.

Potential sponsors are required to make their application online and will then need to submit supporting paper work and the relevant fee (£300 for small businesses, £1000 for all other business) within 10 days. Licences are valid for 4 years from the issue date or the date of issue of the first certificate of sponsorship (see below), whichever is the later date.

As part of the sponsorship application process, the employer will need to demonstrate that they have the HR processes in place to enable them to be able to comply with the reporting and other obligations that will be imposed upon them once they become sponsors. UK Border Agency plan to visit each applying business during the application process or shortly after to satisfy itself that the business will be able to comply with its obligations.

Once a business has been given a sponsorship licence, it will no longer need to apply for a work permit for migrant workers, but will be permitted to issue a "certificate of sponsorship" to the individual it wishes to employ. However, this does not give the employer a free reign to issue certificates of sponsorship to whomever it chooses; a number of different tests will need to be passed before the employer is legitimately able to issue to certificate of sponsorship to a migrant worker for a particular vacancy, namely that:

• the job itself meets the requirements (a minimum level of NVQ3 and a salary at market rate);
• the sponsor is satisfied that the migrant intends and is able to do the job in question;
• the sponsor has carried out a resident labour market test; and
• to the best of the sponsor's knowledge the migrant has the requisite number of points under the relevant Tier of the PBS.

Although the sponsorship regime has not yet been introduced, employers are already able to make applications for a licence for sponsoring migrants under the "General" and "Inter-Company Transfer" sub-categories and it is strongly recommended that employers do this without delay. The Home Office estimate that 25,000 businesses will need to obtain a sponsorship licence in order to continue their recruitment trends but to date fewer than 80 businesses have joined the sponsorship register. Inevitably there will be a huge last minute rush on applications and it is unlikely that all of these will be considered before the sponsorship regime comes into force.

New penalties for non-compliance

Along with the introduction of Tier 1 (General) under the PBS on 29 February 2008 came new penalties for employing migrant workers without the correct authorisation to do so. Employers can be served with penalty notices of up to £10,000 where they have employed someone over the age of 16 who is subject to immigration control unless:

• that person has been given valid and subsisting leave to be in the UK and that leave does not restrict them from taking the job in question; or
• that person falls into a category where employment is also allowed.

An employer may establish a "statutory excuse" as a defence to being issued with a penalty notice if they check original documents from a prescribed list ("List A" or "List B") before employing the migrant. However, it is not enough simply for the employer to check the documents - they must also take reasonable steps to check the validity of the original document and that the holder of the document is the right holder. They must also take a copy of the relevant pages before employing the individual.

Documents under List A are those documents which confirm that the individual is a British, EEA national, dependant of an EEA national (with permanent residence) or has indefinite leave to remain in the UK. These documents need only be checked once. Documents under List B are those which confirm that the individual has limited leave to remain in the UK. These documents must be checked every 12 months to ensure that they are still current.

In addition to the civil penalty of up to £10,000 per illegal worker, there is also a new criminal penalty for knowingly employing illegal workers, which can include prison sentences for the individuals working for the employer who had knowledge of the illegal working.

If you would like further advice on employing migrant workers in your business, employment expert Katharine Holliday would love to hear from you. Simply email her or call her 01223 461155