Immigration: legal Q&A

The government is taking measures to clamp down on the employment of illegal workers and is making drastic changes to the immigration system. So what implications will this have for employers?

Q Will there be any new offences under the proposed legislation?

A Under the Immigration, Asylum and Nationality Act 2006 the offence of employing someone illegally will remain and there will still be a defence if employers have carried out the required checks. However, under this new law employers will not be able to establish a defence by showing that they checked and copied the prescribed documents at the outset of employment if they are aware at any stage that an employee is working illegally. There will be a new criminal offence of knowingly employing someone who does not have permission to work in the UK. These provisions are likely to come into force later this year.

Q Will there be any additional penalties under the new legislation?

A On-the-spot fines of up to £2,000 per illegal worker are being introduced. Employers will be able to object to these fines on various grounds, for example, if they can show they carried out the required checks prior to and during the person’s employment. Under the new legislation it is likely employers will have to carry out further checks every 12 months if the person has limited leave to remain in the UK.

Any person found guilty of knowingly employing someone who does not have the right to work in the UK may be punished by a fine, up to two years in prison, or both.

Q I have heard that a new points-based system will be introduced and that this will replace the work permit scheme. How will this affect employers?

A Individuals who want to come to the UK will need to go through five main routes, all of which will be points based, with applicants needing sufficient points to be given the right to enter or remain in the UK. The five tiers are as follows:

  • For highly skilled individuals, broadly replacing the Highly Skilled Migrant Programme

  • For skilled individuals with a job offer from an approved sponsor to broadly replace the work permit scheme

  • Limited quota system for low-skilled workers to fill temporary shortages in specific industries

  • For students

  • For youth mobility and temporary workers.

The number of points and the criteria for which points are awarded is still being decided. However, for tiers one and two, points will be awarded for qualifications, previous earnings and age. There will also be an English language requirement.

The majority of applications will be handled by British embassies overseas, and the individual will submit the application to their closest embassy. There will be no need for the employer to apply for a work permit first.

The first phase of the new scheme is due to be implemented by April 2008, with implementation of the entire system expected by April 2009.

Q Under the new scheme will employers be required to act as sponsors?

A Sponsorship is due to be implemented by April 2008. Employers will need to register as approved sponsors, and will be required to take responsibility for assisting the Home Office in ensuring workers and employers comply with immigration laws, and for vouching that an application is legitimate.

The details are still being decided, but employers are likely to have to demonstrate that they are established in the UK and are in a position to employ people. Employers are likely to be responsible for vouching that they have advertised the position and that they have checked the person has suitable skills and qualifications. They will also be responsible for informing the Home Office if the person fails to start work or leaves their employment. If employers do not comply with their responsibilities, one potential outcome may be suspension from the sponsorship register.

Q Is there anything we should be doing to prepare for the new regime?

A You should ensure that, as part of your recruitment process, you carry out the appropriate checks to ensure employees have the right to work in the UK. This process will need to be adapted once further details of the new legislation are published.

In preparation for the new points based and sponsorship regime, it is advisable to establish a good relationship with the Home Office. For example, keep the Home Office informed if any work permit holder fails to start work, leaves, is promoted or moves to new premises.

By Kerry Garcia, solicitor, Stevens & Bolton

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