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

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.

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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.