The immigrant worker game – red tape is a real turn-off

Significant changes have been taking place to our immigration system, in particular with regard to the employment of foreign workers. From 27 November 2008, organisations wanting to employ people from outside the European Economic Area must successfully apply for a sponsorship licence from the Border and Immigration Agency (BIA), which can cost as much as £1,000.

The new points-based immigration system has been the subject of much criticism. Not only must employers prove they are worthy of a sponsorship licence, they must also ensure they only issue certificates to employees who satisfy the criteria. Employers must take significant responsibility for the actions of their migrant employees, and the monitoring of illegal working, as well as close scrutiny of their HR processes and the general running of their businesses.

Although the register has been open for months, at the end of October 2008 only 3,700 employers had successfully registered as sponsors, significantly fewer than the 20,000 companies that had been expected to apply. The reasons for this seem to be the arduous process of filling in the online application, putting together vast amounts of accompanying documentation (which must be issued within 10 working days of the online application being made) and the fear of BIA spot checks of their HR systems.

The 130-page guidance document is by no means simple. It clearly indicates that the BIA has considerable discretion in granting and withdrawing sponsorship licences. Licences will only be granted to “genuine organisations that are likely to comply with their duties”. The BIA will also consider whether the organisation in question is “dependable and reliable,” “a genuine organisation operating lawfully” and “capable of carrying out its duties as a sponsor”.

These are highly subjective criteria, making it difficult to predict whether an organisation will be accepted as a sponsor. If there are any doubts as to the above issues, the BIA can label the employer as a B-rated sponsor, which leads to even higher levels of scrutiny and an action plan that must be completed within 12 months. Failing this, they will be struck off the sponsorship register.

If employers did not have their licence by 27 November, they cannot employ workers needing permits. Fast tracking is not possible and it can take six weeks for applications to be considered. Although there are other ways of migrant workers entering the UK, employers will find themselves forced to take domestic workers, who may be less able to do the job, simply because employers do not want the responsibility of becoming a sponsor.

This, along with the increase in civil sanctions in February this year, leaves employers feeling vulnerable to prosecution for inadvertent breaches under the new civil penalty scheme, leading to fines of up to £10,000 if an employer has not fully satisfied themselves, from documentation, that the employee is who they say they are.

Helen Duffy, solicitor, SA Law

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