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ArticlesForeign workers
Jennifer Lambe, of Mishcon de Reya (REC Business Partners) comments on current immigration issues Q: How do I know if I can employ an overseas national in the UK? What are the implications of accidentally employing someone without permission to work in the UK? What are the proposed changes to the immigration laws? A: Immigration law is a minefield to the prospective employer and with the UK Government issuing Statements of Change every other week, it is little wonder that the prospective employment of an overseas national in the UK strikes fear into the hearts of the uninitiated and initiated alike. Currently, the ‘safest’ forms of work permission from an employer’s perspective are: Grants of Indefinite Leave to Remain; EEA nationals and their dependants; and spouses of persons settled in the UK. Highly Skilled Migrant Programme (HSMP), International Graduate Scheme (IGS) visa holders, and Working Holidaymakers (for up to one year full-time or two years part-time) are also all eligible, once their status and eligibility is verified. Only Work Permit holders whose permission to work is linked to their employer within a specific role, require new permission to change employers, if already in the UK. Dependants of other categories, such as those of Highly Skilled Migrants and Work Permit holders, are also permitted to work, as are the dependants of some students. But continuing eligibility of these dependants is contingent upon the ongoing legal status of the principal applicant, which may cause problems to the employer of their dependants in light of the most recent Government announcement on ‘rogue employers’. We now have the framework for the new points-based system, which is a streamlining and re-categorising of the existing system with the much welcome ethos of simplicity and clarity masking an incoming culture of inflexibility. While there is the potential for greater autonomy for employers, with that will come responsibility and accountability. The new five-tier system:
The implementation of these tiers is projected to start with Tier 1 in early 2008, with Tiers 2 and 5 following closely behind, and (with no further mention of Tier 3) Tier 4 to be implemented in early 2009. One difficulty is that with the exception of Tier 1 and the HSMP (where the changes implemented in December 2006 have it functioning as a pilot to the whole scheme), the Government is still working out the logistics of how these other changes will work. Proposals for Tier 2 are as follows: Employers will become sponsors, and upon deciding to employ an overseas national (after completing the registration process to be eligible) will issue a letter to the applicant to take to the British Diplomatic Post overseas It is therefore likely that this part of the proceedings will take longer, but with the proposal of Home Office ‘Account Managers’ to ensure smooth passage of these applications, it is hoped to minimise frustration for UK-based employers. The sponsorship system should streamline simple applications, but will leave complicated cases without any avenue to qualify. As sponsors, employers will have to take responsibility for the ongoing immigration compliance of their workers and their families. For example, if an overseas employee on a work permit leaves your employ, you forget to notify the authorities and the former employee is later found to be illegally in the UK, the new measures will allow potential for a civil action for ‘negligence’ to be brought against the company. Action planThe Illegal Working Action Plan proposes:
Although still under consultation, we may find that whilst the landscape changes, the minefield remains. Related Downloads Download file Adobe Acrobat PDF document (76 KB)
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