UK: Biggest Shake Up Of UK Immigration Law In 45 Years

Last Updated: 17 June 2008
Article by Jayanti Mitra-Valdes

The new civil and criminal sanctions to counteract illegal working are of special relevance to the hotel industry, which employs a high proportion of migrant workers.

Illegal working has been high on the political agenda for some time, and is intricately linked to the roll out of the new 5-tiered points based system, which represents the biggest shake up of UK immigration law for 45 years. Tier 2 of the new system is the relevant Tier for employers and is due to be introduced in the third quarter of 2008. Under the new Tier 2, employers will be termed 'Sponsors' and there will be an overarching obligation on sponsors to 'police' the system and ensure that it, as well as its employees, are fully compliant.

To view the article in full, please see below:




Full Article

The new civil and criminal sanctions to counteract illegal working are of special relevance to the hotel industry, which employs a high proportion of migrant workers.

Illegal working has been high on the political agenda for some time, and is intricately linked to the roll out of the new 5-tiered points based system, which represents the biggest shake up of UK immigration law for 45 years. Tier 2 of the new system is the relevant Tier for employers and is due to be introduced in the third quarter of 2008. Under the new Tier 2, employers will be termed 'Sponsors' and there will be an overarching obligation on sponsors to 'police' the system and ensure that it, as well as its employees, are fully compliant.

What Are The New Illegal Working Provisions?

From 29 February 2008, any employer who unwittingly hires an illegal worker faces a fine of up to £10,000 for each worker, and those who "knowingly" hire an illegal worker risks an unlimited fine and/or imprisonment.

The statutory excuse to employing an illegal worker is that the employer checked that the potential employee had the relevant documents before s/he commenced work, and that a copy of the documents were retained on file. The employer also has the obligation of checking that the documents appear genuine and clearly relate to the prospective employee. However, employers must avoid any race discrimination claims by checking the documents of all new employees (including British citizens), not just those who are subject to immigration control.

Employers are also under an obligation to monitor employees' UK immigration permission on a rolling 12 monthly basis (with the exception of employees who have no restrictions on working in the UK - please see below).

Who Does, And Who Does Not Have Permission To Work In The UK?

In order to ensure compliance, it is imperative that an employer, and all employees involved in recruitment, fully understand who is able to work in the UK and who requires permission to work in the UK. Those who are able to work in the UK include the following: British citizens (with the exception of certain categories of citizenship); persons who have right of abode; EEA (European Economic Area) nationals and their spouses; persons who have indefinite leave to remain in the UK; Swiss citizens; Commonwealth nationals with UK ancestry and working holidaymakers; highly skilled migrants; spouses of UK work permit holders; and spouses of British citizens (all these categories are able to work full time in the UK).

There are however important restrictions on the Accession States. A8 nationals  (nationals from those countries that joined the EU in 2004) workers are required to register under the Worker Registration Scheme within the first month of commencing work, and to maintain their registration certificate until they have completed 12 continuous months in the UK. In addition, citizens of Bulgaria and Romania have restricted rights of access to the UK labour market and as such, are required to obtain immigration permission in order to work, for example under the Sector Based Scheme (low skilled, and only for certain posts in the Food Manufacturing industry) or in the form of a work permit (skilled) and a subsequent Accession Worker Card.

Nearly all non-EEA nationals will require permission to work in the UK, for example under the Highly Skilled Migrant Program or the Work Permit scheme before being able to work in the UK.

How Will The New System Affect The Hotel Industry's Ability To Bring Migrant Workers To The UK?

The current work permit scheme is the natural choice for many employers in the UK looking to employ skilled migrant workers from non-EEA countries in the hotel industry.

Under the new system however, employers will need to become 'Sponsors' and apply for a licence through the Sponsorship Register (launched in February 2008) although detailed guidance has still not been provided by the Home Office. Employers will either be "A" rated (a fully compliant employer) or "B" rated (an employer whose record is tarnished). The latter type of employer will find it more difficult to bring over migrant workers to the UK.

Once the employer is registered on the Sponsorship Register and has been issued with a licence, the employer may then make an application for a Certificate of Sponsorship (a virtual document), which certifies that the proposed employee has the right blend of skills and experience for the role. The employee will then need to make an application to the relevant British diplomatic post abroad and submit documentation to show that s/he scores 50 points in different areas (qualifications, UK salary, and the resident labour market test).

Tier 3 was initially designed for low-skilled workers from the hospitality industry however this Tier has now been suspended until further notice (as the Government envisages that these low skilled roles will be filled by European workers).

Obligation And Compliance

Once an employer is deemed a 'Sponsor' under the new Tier 2 system, it will have much greater responsibilities, such as reporting to the Home Office within a specified time period (usually 10 days)  if a migrant worker does not turn up on the first day of work, or if s/he has an unauthorised absence of longer than 10 days. In addition, an employer must keep a record of the migrant's contact details, as well as notify the Home Office within 10 days if the individual leaves the employer's employ etc (in addition to the above outlined responsibilities of keeping documents on file and ongoing monitoring of migrant's permission to remain in the UK).

Any employer found to be non-compliant, at best risks being struck of the register and unable to bring migrant workers to the UK, and at worst, it risks civil and criminal sanctions not to mention damage to its reputation.

Getting Your House In Order

Employers have a window of opportunity before the launch of the new Tier 2 system to "get their house in order" (although some employers are already being inspected by the Home Office).  The hotel industry seems an obvious target due to the high numbers of migrant workers, and this, coupled with the fact that the Home Office are putting enforcement high on the agenda, is a stark warning to employers to ensure they are fully compliant and have accurate records of all migrant workers both prior to, and after, the roll out of Tier 2.

This article was written for Law-Now, CMS Cameron McKenna's free online information service. To register for Law-Now, please go to www.law-now.com/law-now/mondaq

Law-Now information is for general purposes and guidance only. The information and opinions expressed in all Law-Now articles are not necessarily comprehensive and do not purport to give professional or legal advice. All Law-Now information relates to circumstances prevailing at the date of its original publication and may not have been updated to reflect subsequent developments.

The original publication date for this article was 13/06/2006.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.