UK: Changes To UK Immigration System: Deadline Approaches For UK Employers Of Non-EU Nationals

Essential reading for organisations that employ non EU nationals in their UK workforce. From 1 November the current work permit scheme will be replaced with a new points-based qualifying system. Employers who wish to employ non-resident workers will require a license to issue "certificates of sponsorship" to candidates and should make their application for a license before 1 October 2008

The Home Office is part way through a total overhaul of the UK immigration system. The old regime with almost three dozen immigration categories, each with their own qualifying criteria, is being simplified to a 5 tier "points-based" system as follows:

• Tier 1 – highly skilled workers, investors and entrepreneurs
• Tier 2 - skilled workers with a job offer, ministers of religion and sportspeople
• Tier 3 – low skilled workers filling specific temporary labour shortages
• Tier 4 – students
• Tier 5 –youth mobility and temporary workers, e.g. musicians coming to play in the UK

The first phase of the re-organisation took place at the end of June, when the Highly Skilled Migrant Programme, already a points-based system, was replaced by "Tier 1", covering highly skilled workers, as well as investors, entrepreneurs and certain students who wish to remain in the UK after completing their studies.

The change with the biggest impact for employers is the closure of the current work permit scheme with effect from 31 October 2008.

From 1 November UK employers who wish to hire non-resident workers who do not qualify for Tier 1 status must hold a license to sponsor Tier 2 workers and issue a certificate of sponsorship to each applicant whom they wish to employ.

License To Sponsor

Employers may apply for a license to sponsor now and should do so before 1 October if they want to be ready to hire non-resident workers as soon as the new system goes live on 1 November.

The application must be completed on-line (http://www.ukba.homeoffice.gov.uk/employers/points) and original supporting documents establishing the bona fides of the UK employer must be submitted within 10 working days thereafter.  Although third party advisers can assist in the preparation of the application, it must be submitted by a permanent member of the employer's staff.

The new licensing system places obligations on the sponsoring employer to help ensure that there are no abuses of the immigration system. In particular the sponsoring organisation will have to keep records of the individuals sponsored, including contact details, and inform the Border and Immigration Agency (BIA)if they either do not turn up for work or are absent without permission for a significant period of time. The BIA will have the right to make spot checks to ensure compliance and if it has concerns about an employer it may either downgrade or revoke its sponsor status. (Civil and criminal penalties may also apply if the employer is found either negligently or deliberately to have employed an illegal worker).

The sponsoring organisation must nominate one or more individuals to the following roles:

Key Contact – the main point of contact with the BIA, responsible for dealing with queries on the license application

Authorising Officer – responsible for the license application and compliance with all duties to the BIA. This role must be held by a permanent member of staff based in the UK

Level 1 User – responsible for day-to-day operation of the Sponsor Management System, in particular for assigning certificates of sponsorship, and for updating the sponsor's information held by the BIA. The Level 1 User must be based in the UK. An external representative such as a lawyer may act as Level 1 User but may not act as Authorising Officer.

The fee for a license to sponsor is £1,000 (£300 for organisations that qualify as small companies under the Companies Act 2006). The license is renewable every four years.

Sponsoring A Tier 2 Worker

Once licensed an organisation can issue "certificates of sponsorship" to non-resident workers whom it wishes to employ. (For these purposes a "non-resident worker" is someone who is neither a citizen of an EEA country or otherwise legally entitled to work in the UK). Current work permit holders whose permits expire after 1 November 2008 will also need to apply for extensions under the new system.

Each sponsor organisation is granted a quota of certificates of sponsorship, based on information given in the license application. Employers should be careful to specify whether they require the right to issue certificates of sponsorship for skilled workers, intra-company transfers, or both.

Before issuing a certificate of sponsorship the employer should check that the individual will score enough points to obtain permission to work in the UK (see below). The certificate of sponsorship is not a physical document, but a unique reference number that is generated by going on-line in the Sponsor Management System. Once the number is issued by the BIA, the employer should provide it to the individual to enable them to make an application for Tier 2 status. The certificate of sponsorship is valid for 3 months and if the worker does not use it to make an application, for example because they accept a job with another employer, the sponsoring employer is still required to pay a fee of £170.

Issue of a certificate of sponsorship does not guarantee that an individual's application for permission to work in the UK will be granted. The BIA has not yet published the Tier 2 application forms however applicants will have to demonstrate that they have a job offer, a certificate of sponsorship and meet the points requirements.

Intra-Company Transferees Must Score A Total Of 60 Points As Follows:

Skilled workers who are not coming to the UK on an intra-company transfer must meet a tougher test, scoring a minimum of 70 points including 10 points for maintenance (funds available to support themselves) and 10 points for English language skills. Unless they have been selected for a job on the shortage occupations list, they must also meet the resident labour market test.

The resident labour market test is intended to demonstrate that there is no suitably qualified worker already settled in the UK who could do the job. Employers are required to advertise posts in compliance with criteria laid down by the BIA. The BIA intends to publish codes of practice that will specify the advertising requirements for specific jobs and market sectors but in the absence of an applicable code the job must be advertised using Jobcentre plus, the government labour agency.

In addition to any requirements specified in the codes of practice, all advertisements must include details of job title; duties; location; salary package and terms; skills qualifications and experience required; and a closing date for applications (unless there is a rolling recruitment programme in place). If the salary for the job is £40,000 or under it must be advertised for a minimum of 2 weeks; if the salary is over £40,000 it must be advertised for at least one week. Any certificate of sponsorship that relies on the advertisement as proof of compliance with the resident labour market test must be issued within 6 months of the placement of the advertisement.

Skilled Workers Must Score 70 Points As Follows:

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.