Legal Q&A: sponsoring migrant workers

The UK Border Agency’s much publicised new points-based system for migrant workers goes live in November 2008. It marks the biggest change in the UK’s immigration system for many years. So what do employers actually need to do to register as a sponsor under the new system?

Q When is the new system launched?

A The proposed launch date is 1 November 2008. From this date, the old system will be closed and any new applications or renewals of work permits must be made under the new system.

Q How do employers register as sponsors?

A Organisations must register online and complete an online application form. Once this form has been completed and submitted, the submission sheet should be printed and sent to the Border Agency, accompanied by the required fee and supporting documentation. These will then be checked by the Border Agency and, on approval, the name of the organisation will be published on the Register of Sponsors. Employers who register must pay a licence fee ranging from £330 to £1,000 depending on the size of the organisation. Licences should be valid for four years.

Q What checks are carried out on would-be sponsors?

A One duty of all sponsors is to co-operate fully with the Border Agency. To fulfil this duty, an organisation must allow Border Agency staff onto the premises on demand – such visits may be unannounced or pre-determined. During these visits the Border Agency will be looking to assess an organisation’s compliance with the new requirements, such as record keeping, compliance rules and any tier-specific duties.

Q What are tiers 2 and 5?

A Tier 2 encompasses several categories, including skilled workers, intra-company transfers and sports men and women. All workers falling within these categories must already have a job offer. Teachers or nurses are also examples of a skilled worker. Tier 5 comprises four categories: creative and sporting workers, charity workers, religious workers and international workers.

Q How will the new system be policed?

A The Border Agency will use a rating system to manage sponsors. The rating of an organisation will reflect its track record in employing migrant workers. Each rating will be published on the Register of Sponsors, which is in the public domain. An A-rated sponsor is an organisation that has all the required systems in place to meet its duties and obligations and demonstrates no evidence of abuse. The B-rating indicates either a Border Agency officer has found that the organisation does not have adequate systems and procedures in place to satisfy its duties, or that there has been previous evidence of abuse. The Border Agency has the discretion to downgrade an organisation’s rating from A to B.

Q What penalties can be imposed on firms?

A The sponsor could face severe civil and criminal sanctions in the event of a breach. The civil offence of employing a person subject to immigration control who is not entitled to undertake the work can generate a maximum fine of £10,000 for each illegal employee. The criminal offence of knowingly employing a person without permission to work could result in an unlimited fine and/or a maximum of two years’ imprisonment for the employer. Employers must therefore ensure they are carrying out the required specific document checks when recruiting a new member of staff.

Q Who will be held responsible for any breach?

A Organisations that register must have an authorising officer who will be responsible for the activities of all users of the sponsorship management system, plus a key contact to liaise with the Border Agency. These can be the same person, who must be a permanent employee based in the UK. Background checks will be conducted on him/her. Employers must also decide who has Level 1 and Level 2 access to the agency’s sponsorship management system. Only one employee can have Level 1 (fairly open) access. Level 2 users have restricted access. As the authorising officer is responsible for the actions of all users, it is advisable to keep the number of users to a manageable level. The sponsor is held fully responsible for the actions of your authorising office, so it is important that the authorising officer is a senior and competent employee within the organisation.

Q How much do permits cost?

A Each permit – called a sponsorship certificate – will cost £170 for tier 2 and £10 for tier 5.

Emma Peacock, senior associate, Pinsent Masons

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