Business Immigration - What Employers Need to Know
There are several changes in 2008 for UK organisations employing foreign national workers. The first piece of legislation (with regard to Illegal Working) has already come into effect and the second (the Points Based System) will apply from late Autumn 2008*.
Illegal Working
From 29th February 2008, any employer found to have foreign national employees working without permission, is liable to a large civil financial penalty of up to £10,000 per individual.
There are also new criminal sanctions for the offence of ‘knowingly’ employing a person subject to immigration control who does not have permission to work, with a maximum penalty of a 2 year prison sentence and/or an unlimited fine.
How to protect yourselves
The legislation provides that the employer can defend against the liability, if they establish that all necessary document checks have been made BEFORE the potential employee started working for your organisation.
For example,
- You should ask to see original documents such as passports or national ID cards
- HR should verify these documents to ensure that belong to employees by, for example, checking photographs and DOB are consistent with their appearance.
- It is important to check expiry dates of limited leave and any Home Office endorsements, and implement systems to ensure HR is notified to make further checks every 12 months.
- Satisfy yourself documents are genuine and have not been tampered with.
- Keep copies of all documentation for two years after the employment terminates.
Work permits being replaced with Tier 2 of the new Points Based System from Autumn 2008
Tier 2 of the new Points Based System will completely replace Work Permits from the Autumn of this year. Employers will then become sponsors for their own foreign national workers.
Instead of employers applying for a Work Permit for a worker, when Tier 2 is in place later in the year, you will be able, once you have successfully applied for a licence from the Home Office, to issue your own Certificates of Sponsorship to workers abroad, or in country.
If you as an employer do NOT have a licence by the Autumn, once Tier 2 is in place, you will not be able to continue to employ skilled foreign national workers who require entry clearance, or those who wish to switch in country into Tier 2.
The system is already open to applications for a licence. As part of obtaining the licence, the employer will have to show that they are ‘willing and able’ to perform duties required of them by the Border and Immigration Agency. For example, you will have to show that your HR systems can monitor and track your foreign national workers, so if for example they fail to report to work on the first day, or breach the conditions of their leave, it can be reported quickly. HR professionals involved with the scheme are subject to CIB and Home Office checks, and cannot be an undischarged bankrupt.
Under the new system all sponsors will receive a rating of either A or B. This rating will be a matter of public record and reflects the employer´s ability to comply with reporting and monitoring duties. It is therefore important to ensure that your application for a licence is successful so that you can continue to recruit workers from abroad without disruption to the workplace.
The Border and Immigration Agency will issue a licence for 4 years if granted, but if refused there is no right of appeal and another application has to be made. It is important that your HR team can demonstrate robust internal systems concerning the monitoring of skilled foreign national workers. Employers should therefore to address the issue of their internal systems over the summer, so they are not caught short by the new Tier System Immigration rules when they come in force in late Autumn this year.
* The date has not yet been decided by the Home Office