Immigration and illegal working

Overview

• Employers are responsible for checking whether their workers are legally entitled to work in the UK.
• Employers need to have a thorough understanding of the system, robust internal procedures and a system for keeping abreast of on-going changes.
• A points-based immigration system (PBS) operates in the UK. For latest developments in this area, see LawTracker.
• Significant changes to the immigration rules applicable to non-European Economic Area (EEA) migrants came into force in April 2011.
• The EEA consists of the following countries: Austria, Belgium, Bulgaria, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden, and UK. (Switzerland is not a member of the EEA but its nationals and their families benefit from similar rights to EEA nationals on freedom of movement and work.)
• A strict penalty regime applies to employers who hire illegal workers.

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Points-based immigration system

• The points-based system (PBS) consists of 5 Tiers.
• Applicants who want to work in the UK need to score a specified number of points under one of the 5 Tiers in order to qualify.
• Applicants in Tiers 2-5 also need a certificate of sponsorship from an approved sponsor (for Tier 2, the employer will be the sponsor).
• Tiers 1 and 2 of the PBS are the most commonly used routes for non-EEA migrants to enter the UK for work.

Tier 1

• Individuals who enter the UK under Tier 1 have open access to the job market and can also take self-employed work.
• Unlike Tier 2 they do not need a sponsor.
• A new category, Exceptional Talent, has been introduced for exceptionally talented people in the fields of arts, science and humanities who wish to work in the UK.
• The Tier 1 General route closed to new applicants on 6 April 2011 but it will still be possible for someone already in the UK under Tier 1 to extend their stay.

Tier 2

• From 6 April 2011 there is an annual limit of 20,700 Tier 2 general permits.
• The annual limit of 20,700 places is divided into 12 monthly allocations. Each month the UKBA will consider all applications against a simplified points system, based solely upon the employer holding a valid certificate of sponsorship, the role's salary, the individual's ability to financially maintain themselves in the UK and their language skills. Applicants' qualifications will no longer be relevant.
• Any unused permits in any month will be carried forward to the following month.
• Employers who are registered sponsors no longer receive an annual allocation of Tier 2 general sponsorship certificates, but instead need to apply for a sponsorship certificate each time they want to hire a worker under Tier 2.
• In months where the limit is oversubscribed, sponsorship certificates will be awarded on a points basis designed to favour roles which have been identified as being in national shortage and roles with a higher salary.
• The minimum skill level has been raised to graduate level occupations.
• An employer who has applied for, but not received, a sponsorship certificate in any month will need to re-apply the following month.
• Roles paying £150,000 or more will be outside the monthly limit, as will employees already on Tier 2 permits who wish to extend their stay.
• Employers who are registered to issue Tier 2 intra-company transfers will still receive an annual allocation of sponsorship certificates for these permits. However, the maximum stay in the UK for an individual under a Tier 2 intra-company transfer is 12 months if their salary is £40,000 or less, or 5 years if their salary is above £40,000. An individual who reaches their maximum stay will need to leave the country and wait at least 12 months before re-applying.

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Sponsorship

• Employers who want to sponsor non-EEA nationals who satisfy the requirements under Tier 2, need a sponsorship licence from the UKBA.
• The application must be made on line to the UKBA (who will conduct background checks) and be supported by specific documentation.
• Licensed employers whose businesses operate from a number of different sites can choose between registering once as a head office or having each individual site separately licensed.
• Employers must appoint an Authorising Officer (who must be a UK-based permanent employee) to be responsible for the licence application and for ensuring that the employer meets its duties as a sponsor.
• Once licensed, an employer sponsor has to comply with various duties including record keeping, reporting duties (e.g. to the UKBA if the employee doesn't turn up for work), complying with the law, and co-operating with the UKBA.
• All licensed employer sponsors are given an A or B rating. An employer's rating will be determined by a risk assessment conducted by the UKBA. The UKBA will look at the employer's processes and HR practices as well as its history of compliance with the immigration rules, and may conduct on-site inspections.
• The UKBA will assess a potential sponsor's HR systems across the following key areas: monitoring immigration status and preventing illegal employment; maintaining migrant workers' contact details; record keeping; tracking and monitoring; and recruitment practices and professional accreditations.

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Prevention of illegal working

• There are civil and criminal penalties for employing a person who has not obtained the proper authorisation to work in the UK.
• An employer who employs a person knowing that he is not entitled to work in the UK will have criminal liability - the penalty is an unlimited fine.
• An individual director or manager can be personally criminally liable if he is aware that a person is not entitled to work in the UK and consents to or connives with this. The penalty is up to 2 years' imprisonment and/or an unlimited fine.
• There is no defence to the criminal offence of knowingly employing an illegal worker.
• An employer who unintentionally employs a person illegally, without having carried out the prescribed checks to ensure that the person is entitled to work in the UK will have civil liability - a fine of up to £10,000 per illegal employee.
• An employer who has no idea that a worker is illegal and who checks and copies certain original documents has a defence to the civil penalty.
• The UKBA produces 2 lists of acceptable documents - list A and list B. Applicants should be asked to produce one original document or a combination of documents from either list A or list B.
• Employers must ensure that the documents produced are original documents. Copies are not sufficient. Ideally, the person who sees the original document should keep a note of this on the employee's personnel file.
• For each document, employers should check that it appears genuine and valid, and relates to the individual. In particular, employers should check that any photographs are of the applicant; any dates of birth are consistent with the candidate's appearance; any expiry dates for permission to enter or stay in the UK have not passed; any endorsements allow the applicant to do the work offered; and any name discrepancies are explained by another document, e.g. a marriage certificate or divorce decree.
• A photocopy or scan of the relevant part of the document should be taken and kept in a form that cannot be altered. For passports and travel documents, the front cover must be scanned, along with any pages containing personal details, photographs, signatures, expiry dates, and permission to enter or remain in the UK and undertake the work offered. With biometric ID cards, both sides should be copied, dated and placed on the employee's HR file.
• All other documents should be copied in full. Copies should be retained throughout employment and for 2 years after it ends.
• Checks should be completed before the individual starts work. Employers can carry out the checks during the recruitment process (e.g. at the short-listing stage) or after the applicant has been offered the job (in which case the job offer should be clearly stated to be subject to the applicant being able to demonstrate their right to work in the UK).
• The same checks should be carried out on all applicants at the same stage of the recruitment process. Asking some applicants to provide documents but not others could expose employers to race discrimination claims.
• Currently workers from the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Slovakia and Slovenia (known as the A8 countries) must register with the UKBA within 1 month of starting work. From 1 May 2011, such A8 workers will have an unrestricted right to work in the UK alongside other EEA nationals.
• There are restrictions on the rights of workers from Bulgaria and Romania (known as the A2 countries) to work in the UK, certainly until 31 December 2013. For most categories of workers from these countries, a UK employer will have to apply for a work permit before the worker applies for an 'accession worker authorisation document'. Permission to work will only normally be given where the worker has a specific job offer and the work is in skilled employment for which the employer has been unable to find a suitably qualified resident worker.
• When a worker is from any of the A8 or A2 countries, employers should check that they have evidence of registration or authorisation, in addition to carrying out the immigration checks described above. Failure to obtain this evidence could render the employer liable to a fine of up to £5,000 per worker.

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Resources

Business Link

• Check the eligibility of your migrant workers

CIPD

• Employing Overseas Workers

UK Border Agency

• Comprehensive Guidance for Employers on Preventing Illegal Working: November 2010
• Summary Guidance for Employers on Preventing Illegal Working: December 2010
• Guidance documents for employers
• Sponsorship under the points-based system
• The resident labour market test

Worksmart (TUC)

• Migrant workers - working in the UK

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