Immigration Restrictions

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Immigration Restrictions

Could further immigration restrictions affect your business?

The UK Government has progressively imposed tighter restrictions on the employment of migrant workers. These restrictions are likely to increase in response to the current economic climate.

In an effort to control the numbers of non-European Economic Area (EEA) nationals working in the UK, the Government introduced a points-based system (PBS). Three elements of the PBS are in operation:

Tier 1 (highly skilled migrants);
Tier 2 (skilled workers - this replaces the old work permit scheme);
Tier 4 (students).

Under Tier 1, a highly skilled migrant can work for any employer in the UK without a specific job offer. Tier 1 is valuable to employers because it allows them to employ those migrants without the need to become a sponsor.

Tier 2 applies to skilled workers who have been offered a job by an employer in the UK who is a licensed sponsor. The employer must apply for a sponsorship licence. Once the application is approved, the employer can issue certificates of sponsorship (COS) to migrants it wishes to employ. The migrant(s) must then apply for leave to enter or, if already in the UK, to remain in the UK. The migrant will only be granted leave if he attains a sufficient number of points. Sponsors have a duty to manage their migrant workers and inform the UK Border Agency (UKBA) of any changes to the migrants’ employment or if the migrants are in breach of immigration legislation. The UKBA can carry out an audit of a sponsor’s immigration control and management systems before or after granting a sponsorship licence. Failure to comply with the obligations under the sponsor management system can lead to serious consequences, such as loss of sponsorship licence, deportation of the migrant(s) and criminal liability for the employer and/or any officer who is responsible for managing the migrant(s).

Normally, before a sponsor employs a migrant under Tier 2, it will have had to advertise the position within the resident labour market and show it was unable to fill the vacancy from within that market. However, an employer will not have to satisfy this requirement if it is recruiting for a shortage occupation as listed by the Migration Advisory Committee or if it wants to employ a migrant who has worked for a group company overseas for at least 6 months (known as an intra-company transfer or ICT). An ICT is attractive for employers as the migrant will know their business, does not have to prove knowledge of the English language and will only have to score 50 points, rather than the normal 70.

Nationals from the Czech Republic, Estonia, Latvia, Lithuania, Slovenia, Slovakia, Poland and Hungary must register with the Home Office until they have completed 12 months registered work in the UK. Employers who fail to ensure that their employees comply can be fined up to £5,000.

Finally, be careful if you have a blanket policy of not considering applications from non-EEA nationals for certain posts. Recently, a firm of solicitors was found to have discriminated on the grounds of race because they had a policy of not accepting applications for trainee solicitor roles from non-EEA nationals. The firm believed the UKBA would not accept that they had satisfied the resident labour market test, therefore, the non-EEA nationals would have been refused work permits. The Employment Appeal Tribunal found the firm had not consulted with the UKBA about the prospects of such individuals getting work permits and had no evidence to support their assumption. They also failed to comply with the Code of Practice on Racial Equality and Employment which says that the best candidate should be chosen for the role, irrespective of their race/nationality.