Immigration law changes

The Government is about to implement the most radical change in immigration law for the past 30 years. A five tier points based system will replace more than 80 existing immigration categories and all employers must familiarise themselves with Tiers 1 and 2 of the new system.

Tier 1 is for highly skilled migrants who are able to come to the UK to do any kind of work.

Tier 2 replaces the existing work permit scheme with a sponsorship system. Employers must apply for a licence and, if granted, they will be able to issue certificates of sponsorship. An organisation that does not obtain sponsorship status will not be able to bring Tier 2 migrants into the UK.

To make Tier 2 applications, the employer must confirm that the assignee:

• works in a “shortage occupation” as defined by the Migration Advisory Committee; or

• qualifies as an intra-company transferee, employed for the company for at least six months; or

• will fill a role which has been advertised in the resident labour market with no suitable candidates found; or

• is paid above a particular salary, yet to be announced.

Additional requirements are likely to be introduced for some or all of these criteria, comprising an English language qualification and payment at the market rate for the role.

As a separate change, new penalties for employing staff without the correct permission to work in the UK come into effect on 29 February 2008. Companies who employ staff without having made the appropriate documentation check will face fines of up to £10,000 per employee.  Any individuals within the company who knowingly employ illegal migrant workers may be prosecuted, with imprisonment of up to two years being a possible sentence.

Sponsor responsibilities

 To bring Tier 2 migrants into the UK, employers must register as a sponsor. Organisations with any history of immigration non-compliance under the current system may not be permitted to register or may have onerous conditions attached to their registration. It is therefore vital that employers should, pre-registration, identify any immigration problems that may currently exist, through an audit of their current immigration compliance process.

It is likely that employers will be able to join the Home Office’s Sponsorship Register between the end of February 2008 and the implementation of the Sponsor Management System in October 2008. It is not known how long the application process will take but employers should register as soon as possible because failure to register before the system goes live will severely disrupt an organisation’s international mobility programme.

Registration is only part of the picture. Under the new system, companies must also:

• keep accurate records of visa expiry dates;

• notify the Border and Immigration Agency of changes regarding employment (including the unauthorised absence or departure of an assignee);

• collect and assess evidence to ensure that each prospective assignee meets the Tier 2 criteria, including salary level;

• confirm that each assignee continues to have permission to work in the UK every 12 months; and

• keep accurate records about the assignee. This will involve introducing new employment conditions and policies to ensure compliance and these must reflect data protection and privacy principles. 

Companies who fail to fulfil the duties described above face removal from the Sponsorship Register. This will prevent the issue of future certificates of sponsorship.

Contact details
Email: Julia Onslow-Cole
Tel: +44 (0)20 7804 7252