The Government’s drive to reduce immigration will mean employers must be more aware of the requirements for employing foreign workers. Immigration solicitor Tijen Ahmet explains.
The Immigration Bill announced on 10 October 2013 has caused much debate since its inclusion in the Queen’s Speech in May 2013, and has led to three public consultations on key measures. The Bill’s announcement was followed by enforcement action against illegal migrants in the UK through the Government’s controversial “go home or face arrest” van campaign. Migrant groups claim the Bill is creating a hostile environment for migrants in the UK.
Employment law manual: Employing foreign nationals
How to apply for a sponsor licence
Carry out checks on the immigration status of TUPE transferred employees
Check a job applicant’s eligibility to work in the UK
Apply for a tier 2 sponsor licence
The Bill aims to make it more difficult for migrants to stay in the UK where they have no legal right to do so. Although there have been several immigration Bills over the years, this latest demonstrates the Government’s robust approach to preventing migrants abusing the system and is geared towards the commitment to reduce net immigration to below 100,000 by 2015.
Employers need to be aware of the affect the key proposals will have on their business, and how it will change the responsibilities of HR professionals and managers when employing foreign nationals. The following 10 points outline key changes to consider.
1. Right-to-work checks
As part of the recruitment process, right-to-work checks must be carried out to ensure that only those who are legally entitled to work in the UK are employed. The checks will also give employers statutory protection against the payment of a civil penalty if they are found to be employing an illegal worker. The Bill will make it simpler to complete these checks by making older documentation that is vulnerable to forgery ineligible, thus reducing the number of acceptable documents. Straightforward guidance will be available to confirm which documents are needed to confirm a person’s right to work in the UK.
2. Higher civil penalties
If employers are found to be employing an illegal migrant without undertaking the necessary checks, the current position is that they may be subject to a civil penalty of up to £10,000 per worker. The new law will increase the maximum penalty to up to £20,000 per illegal worker, with a starting point of £15,000 for a first-time offence. There will be consideration of mitigating factors and discounts for penalties paid early. Measures will also be introduced to make partners and directors of limited-liability businesses liable for a company’s failure to pay these penalties.
3. Director and partner liability
The Government has supported the proposal that directors and partners of limited-liability businesses should be held jointly liable for penalties, and action will be taken against businesses that fail to pay the civil penalties imposed for employing illegal workers. The Home Office aims to develop appropriate measures to address legal complexities relating to the link between company and partnership law.
4. Warning letters abolished
At present, a warning letter is issued to businesses for a first-time breach of the right to work, but under the new law this practice will be eliminated. The Government believes that businesses should be aware of their responsibilities, as the civil penalty scheme has been running for five years. There is concern that issuing an upfront penalty as opposed to a warning letter may not encourage compliance. For example, if a business recruits an individual without knowing they are an illegal worker, the business may not want to alert the authorities for fear of a fine or potential closure. The abolishment of a warning letter will have an effect on smaller businesses that are employing migrant workers for the first time and may result in unfair penalties, as well as making it more difficult to detect illegal working.
5. Annual checks removed
Where a migrant worker has a visa with a time-limited status in the UK – for example, a three-year work visa – employers are currently required to undertake an annual check. The employer must complete a right-to-work check every year until that three-year visa expires. This check is being removed and employers will simply be required to undertake a follow-up check at the expiry of the migrant worker’s permission to stay in the UK. This is intended to reduce burdens on organisations.
6. Reliance on the biometric residence permit
Following the rollout of the biometric residence permit (BRP) in 2008, there have been more than 1.4 million issued to non-European nationals. The BRP replaces the visa stamp in a migrant’s passport. It is similar to a credit card and holds a migrant’s information, including a digital photograph, fingerprints, an electronic signature, personal details, immigration status, entitlements and any restrictions while they are in the UK. BRPs are issued to non-EU nationals who make an application in the UK. The Immigration Bill will place a greater reliance on the BRP and should make it easier for employers to undertake right-to-work checks, which will reduce business costs. The Bill will also include measures to enable the Home Office to use biometric cards similar to the BRP for non-EU family members of EU nationals.
7. TUPE transfer changes
Transfer of employees from one employer to another is regulated under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE). Where there is a TUPE transfer, the current rules allow the new employer 28 days from the date of transfer to complete right-to-work checks for migrant employees. The new law will extend this period to 60 days, with the Government recognising that the transfer of a larger number of staff would put pressure on the new employer to make adequate checks. In TUPE transfers, the transferee employer must be licensed by the UK Border Agency to sponsor migrant workers in the UK.
8. Students’ right to work
Employing international students can be problematic because of restrictions on their ability to work. Foreign students can work part time during their study term and full time during their holidays. The Bill will require that migrant students provide evidence of their term dates as part of the right-to-work checks to prevent students breaching their visa conditions. The Government intends to consult various education providers before introducing the measure to make it simpler for employers to complete checks on their student workforce.
9. NHS charges
For any foreign nationals coming to the UK on a temporary basis for more than six months, there will be a non-refundable fee that may be paid as part of the visa application fee. This charge is to be used to contribute to any costs of healthcare used by the migrant while in the UK. The Government has not yet confirmed the level of the fee, but some commentators have raised the concern that working migrants making this payment will essentially be paying double, given that they will already be making contributions to the NHS through taxation. Employers should take into account any potential additional costs this will entail when considering recruiting a migrant worker.
10. Restrictions on appeal
The Immigration Bill will remove the right of appeal for the majority of immigration applications, reducing 17 rights of appeal to only four. Home Secretary Teresa May claims that the Bill “will create an effective and efficient appeals system” and is aimed towards preventing foreign criminals from remaining in the UK through the appeal process. This may result in some migrants not being able to appeal against unfair immigration decisions. Employers should be aware of the risk of continuing to employ a worker who no longer has a legal right to stay in the UK in circumstances where an employee cannot provide right-to-work documents because of a pending appeal. Employers should consult employment law advisers for guidance on the course of action to take to guard against potential penalties in such circumstances.
HR professionals and managers should ensure internal processes include comprehensive right-to-work checks on all prospective employees to ensure immigration law compliance and to protect from a range of risks. These include civil penalties, the revocation of a sponsor licence to employ migrant workers or, in severe circumstances, the closure of the business.