Mon, 21 Apr 2014
Nabila Mallick summarises the key points of immigration law for employers.
The purposes of this Article is to provide guidance to Employers on Immigration Law
• Role and duty as an Employer
• Various types of status held
• Necessary Document Checks
• Sanctions for non –compliance
Role and duty of employers
EEA nationals have an unrestricted right to live and work in the United Kingdom. Non-EEA nationals can work in the UK either by acquiring rights under the Posted Workers Directive or through the various points based immigration rules.
In conducting any recruitment exercise that attracts foreign national applicants, businesses should be careful not to discriminate on the grounds of nationality - for example employers should not automatically rule out applications from non-EEA foreign nationals requiring permits to work in the UK: Osborne Clarke Services v Purohit UKEAT/0305/08. Whilst it is unlawful to treat a job applicant less favourably on the grounds of race/nationality, an Employer must establish whether the Employee has the appropriate Immigration visa to work for their business - once the appropriate candidate has been selected.
The Employer must make any offer of employment conditional on the foreign national employee (FNE) obtaining and maintaining appropriate immigration status. There must also be a term written into the contract of employment, which obliges the Employee to ensure that the appropriate immigration status for the purposes of employment is maintained, whilst the Employee remains employed by the company.
Employers seeking to sponsor employees for the purpose of employment must consult the code of practice, which details a list of jobs for which FNE can be sponsored. A certificate of sponsorship is a virtual certificate, with a sponsorship number generated by the UK border agency sponsorship management system. It is used by the employee in its visa application.
In the case of TUPE transfers, Employers will have 28 days (will be 60 days after the announcement of the next statement of changes) to conduct Immigration document checks on its employees before liability can arise.
Section 8 of the Asylum and Immigration Act 1996 imposes an onus on employers to ensure that all employees are not in breach of the Immigration Rules.
Different types of Status
The different immigration rules means that FNE must pass a point-based system. It is important for Employers to recognise the different types of Immigration routes into the United Kingdom:
• Tier 1 (General): applies to highly skilled individuals (previously the Highly Skilled Migrant Programme). The general route is now closed to all new applicants. However recent changes result in an expansion to include exceptional talent to permit visas to those specialising in digital technology endorsed by tech city.
• Tier 1 (Post-study work): previously granted individuals who had graduated from a UK university under Tier 4, two years of leave to remain with the ability to work without a sponsor. This route is now closed to all new applicants
• Tier 2: applies to skilled workers who are offered a sponsorship to fill gaps in the UK labour force (previously the work permit route). Recently changed to allow visas for five years rather than three years.
• Tier 4: applies to students who wish to come to the UK to study. Individuals must be sponsored by the educational establishment to undertake their studies. They are permitted to work up to 20 hours vacation time and full time during vacation time.
• Tier 5: applies to individuals on a youth mobility scheme and temporary workers who are allowed to work in the UK for a limited period of time to satisfy primarily non-economic objectives, such as exchange schemes.
Note that whilst a certain route may be closed, a pre-existing visa will nonetheless will be valid and the FNE will be entitled to rely on it, as long all the conditions of the visa continue to be met.
Necessary checks
The Employer must conduct the necessary document checks (The Asylum and Immigration Act provides two lists for document checks. List A relates to documents required for those with no restrictions on the right of residence. List B relates to those with limitations/conditions to rights of residence in the UK) before employing any employee. The following documents must be obtained:
• Passport or other travel document endorsed to show that the holder is allowed to stay in the United Kingdom and is allowed to do the work in question, provided that it does not require the issue of a work permit; or
• A Biometric Immigration Document, issued by the Border and Immigration Agency to the holder which indicates that the person named in it can stay in the United Kingdom and is allowed to do the work in question; or
• An Immigration Status Document issued by the Home Office or the Border and Immigration Agency to the holder with an endorsement indicating the basis the FNE is entitled to stay in the UK and a document with the National Insurance number or
• A letter issued by the Home Office or the Border and Immigration Agency to the holder or the employer or prospective employer, which indicates that the person named in it can stay in the United Kingdom and is allowed to do the work in question, when produced in combination with an official document giving the person's permanent National Insurance Number and their name issued by a Government agency or previous employer
Sanctions for Non Compliance
UKBA can conduct compliance and enforcement steps, by conducting workplace raids on reasonable suspicion of non-compliance with immigration laws. The UKBA has the right to entry, search, seizure of relevant documents and arrest. If anyone is employed in breach of Immigration laws, the Employer will be issued with a notice of potential liability (it is proposed by changes due to take effect after April 2014 that Employers would be permitted to respond with a notice of objection before any appeal to court) and a fine of up to £10,000 (due to rise to £20,000 with first civil liability penalty to start at £15,000 - Employer will be able to reduce the sanction by offering mitigation (1) reporting the Employee (2) Assisting the UKBA in its enquiries) can be imposed for each such FNE. Further if an Employer is found to have knowingly employed a person breaching Immigration law, he will be liable up to two years imprisonment and unlimited fine.
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