The new points-based system will herald in increased obligations and hefty penalties to potential sponsoring employers.
A radical overhaul of immigration is being phased in next year, so employers that hire overseas nationals will need to get to grips with a wide range of new obligations. Given the lack of publicity to date, it remains to be seen if employers will be ready for the new points-based model, under which employers will play a far greater role as sponsors.
High price to pay
Many employers acknowledge they benefit from the ability to employ migrants and seem willing to take on some additional responsibilities. However, the Home Office may well have taken this goodwill a step too far when deciding on new obligations for sponsors, with some employers expressing the view that they are effectively being asked to undertake the role of immigration officials.
For example, they will have to state they are satisfied that the person will comply with their conditions of leave and have sufficient funds. They will also have to provide up-to-date information about the migrant and the business, and report suspicions of criminal activity to the police.
Failure to comply could result in the employer being struck off the sponsorship register. If not exercised with caution, this is a punishment that may well exceed the crime, and will punish both the employer and the worker (who would have to leave the UK). Let’s hope the Home Office takes a sensible approach during the first few months and publicises the new obligations widely.
To add to employers’ workloads, increased penalties for employing illegal staff are due to come in from February 2008, with fines likely to be up to £10,000 per worker. The current system has yielded few convictions, and is in need of an overhaul, but more training on how to detect forged documents is also needed to reduce the number of illegal staff.
To maintain a defence, employers must check documents at the start of employment and then every 12 months if the person has limited leave to remain in the UK. This will require significant resources, as employers will need to diarise these checks for every worker with limited leave and ensure they are carried out.
Side effects
The cost to businesses is potentially substantial, but it is far from clear as to whether these changes will have any effect on the number of people working illegally in the UK. Instead, it could have an effect on the number of overseas nationals legally working in the UK.
Increased obligations, and the extra time required to comply with them, may cause employers to think twice before taking on an overseas national. This could affect the economy, which sees a net benefit from migrant workers, but employers should be wary, as this attitude could lead to more race discrimination claims.
Significant changes as to who may come to the UK are also in store. Indications are that staff who will earn at least £40,000 will have sufficient points to come to the UK based on earnings alone. This is a surprising move, as it opens up highly paid positions, including fairly junior graduate posts, to international competition, and is contrary to recent government views of British jobs for British people. The arbitrary figure of £40,000 may also result in a North/South divide, as this change will particularly benefit employers in the City and the South, where salaries tend to be higher. They will gain a wider pool of talent to recruit from. And more people may settle in these already overpopulated areas.
In contrast, lower-paid staff will find it harder to accumulate enough points, making it more difficult for employers such as charities to recruit overseas nationals, even though they may have a wealth of valuable experience. It is a shame that the government has not taken this opportunity to construct a system where experience, and not just salary and qualifications, are taken into account.
As further changes are likely to be announced next year, all businesses need to be alert, particularly as the changes have not been widely publicised yet.
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Immigration looks set to move from being just a political issue to being a day-to-day concern for employers.
Kerry Garcia, senior associate, employment and immigration team, Stevens & Bolton
