Introduction
Since 27 November 2008 employers have been obliged to have a Licence in place before employing non EEA nationals under Tier Two of the Points Base System – the replacement to the Work Permit system. It was announced in January 2009 the 4,875 businesses have already been granted Licences.
There are a number of updates to the Immigration system which we have commented on below including some developments that affect Tier Two Sponsors and changes to the rules regarding business visits. We also comment on an EAT case that found that an employers had breached race discrimination laws by having a policy in place of never accepting job applicants who needed a work permit to work in the UK.
Employer Guilty Of Indirect Race Discrimination For Policy Of Recruiting Only EEA Nationals Who Did Not Need A Work Permit.
The Employment Appeal Tribunal issued a Judgement in February 2009 (Osborne Clarke Services v Purohit) which held that an employer which has a policy of refusing to consider non EEA Nationals for trainee solicitor roles, had breached race discrimination laws.
Osborne Clarke Services has a policy of not accepting applications for trainee solicitor roles from non-EEA nationals who required work permits to work in the UK. The EAT found that this was indirect race discrimination based on the nationality of the applicant. The policy had an impact on a higher proportion of non EEA nationals who could not comply with the requirements of the policy. The employer therefore has to provide an objective justification for the potentially discriminatory policy to be lawful.
Osborne Clarke Services argues that applications for work permits would involve administrative costs in circumstances in which the application would be likely to fail. This is because the "test" for obtaining a work permit involved the employer demonstrating that they could not fill the post with an EEA national. The EAT held that the employer had failed to provide sufficient evidence to support its justification. The employer had not entered into any dialogue with the UK Border Agency about the prospects of getting a work permit for trainee solicitors and had not therefore tested its assumption. The employer also failed to follow the CRE Code of Practice on Racial Equality and Employment which states that as far as possible, selection should be base on merit and that potentially suitable candidates should not be excluded unnecessarily from the recruitment process.
This case serves as a warning for employers who have a blanket policy in place of not considering job applications from non EEA nationals for certain posts. Employers will be required to carefully justify such a policy based on firm evidence. For certain roles, employers may be required to consider on a case by case basis, whether there is reason to believe that an application for permission to work in the UK will be unsuccessful once applicants have been selected for a job based on merit.
Tier Two – Codes Of Practice
Employers should not that the UK Border Agency has now published a number of Codes of Practice which give details of the advertising requirement that employers must fulfil in order to meet the conditions of Tier Two (General). It is generally necessary for the employer to meet a resident labour market test for the role. This requires employers to demonstrate that there is no one in the EEA that is available to carry out the job in question by having advertised the role in accordance with specific requirements.
The Codes of Practice are sector specific and employers should ensure that they consult them in advance in situations where they may need to sponsor a migrant for the role in question.
User Manual For Immigration Licences
The UK Border Agency has published a User Manual to help Licensed employers to use the new Sponsor Management System to issue Certificates of Sponsorship (COS) for employees coming to the UK to work. It is available at the following link:
http://www.ukba.homeoffice.gov.uk/sitecontent/documents/employersandsponsors/smsguidance/
Tier Two – Changes To Rules On Maintenance Funds
Applications under Tier 2 (General) of the new immigration system must provide evidence of possessing sufficient funds to meet the maintenance requirements. This requires applicants to show that they have had £800 in their bank account for the previous 3 months. However as an alternative, if the sponsor is A-rates by the UK Border Agency, it may provide written confirmation that it will maintain and accommodate the migrant for the first month if necessary. This will be helpful in avoiding delays in having certain migrants enter the UK where they may not have had sufficient funds in their accounts.
Sponsors can also assist in relation to the maintenance requirements that apply to migrants' dependents. The dependent of the migrant must have held £533 for each dependent for the previous three months or an A-rated sponsor may provide written confirmation that it will maintain and accommodate the migrants' dependents for the first month if necessary.
TUPE & Migrant Workers
The UK Border Agency has recently updated its guidance which outlines the obligations upon Licensed sponsors to inform the UKBA if they are involved in a TUPE transfer. This must generally be reported to the UK Border Agency within 28 days, and if the organisation inheriting the employees does not have a Licence, it must apply for one within 28 days.
Sponsoring Migrant Workers Under Tier Two
Employers should note that under the old work permit system, Work Permits UK was tasked with ensuring that the relevant requirements of the work permit were satisfied. Under the new regime, employers are responsible for ensuring that the relevant requirements have been met prior to issuing a COS. If a COS is issued to a migrant and if it transpire that there has been non compliance with the necessary requirements the employer may be in breach of its Licence obligations. The employer could potentially have its Licence withdrawn for serious breaches which can result in all migrants who are employed under the Licence in question, having the leave shortened to 60 days (to enable them to find a new sponsor or to leave the UK). Therefore, it is recommended that those responsible for issuing Certificates of Sponsorship are properly trained in the requirements of that legal representatives are involved in issuing the COS.
Changes To Business Visitor Visas
The rules for business visitors changes with effect from 27 November 2008. The immigration category of business visitors is useful as it permits those who need to visit the UK for business purposes, but who will not actually work in the UK, to enter the UK for temporary periods. Business visitors can normally come to the UK for a maximum period of six months. (Some exceptions apply eg in relation to academic visitors.)
Business visitors must plan to leave the UK at the end of the visit and they must demonstrate that they can support and accommodate themselves without working. They must also show that they are based abroad and have no intention of transferring their base to the UK even temporarily. They must receive their salary from abroad. Other conditions apply to this form of permission to enter the UK.
Visa nationals (who re nationals who come from specific countries listed on the UK Border Agency website) need to apply for entry clearance overseas before coming to the IK as a business visitor. Academic visitors need to apply for permission to visit the UK in advance of their visit regardless of what country they are from. Other business visitors can simply apply for entry at the airport or when entering the UK provided that they meet the criteria in question.
The UK Border Agency has recently clarified the guidance on what activities business visitors are permitted to do whilst in the IK and this has applied since 27 November 2008. The guidance is available at the following link:
http://www.ukba.homeoffice.gov.uk/visitingtheuk/businessandspecialvisitors/businessvisitors/
Permitted activities include:
- Attending meetings and conference;
- Arranging deals or negotiating or signing trade agreement or contracts;
- Undertaking fact finding missions;
- Conducting site visits; and
- Board-level Directors attending board meetings in the UK provided they are not employed by a UK company.
Further activities are expressly permitted. Business visitors should normally carry a letter from their employer demonstrating that they will carry out specific activities that are permitted under the rules. It is also worth noting that some newly created visitor categories now apply (eg for sports people and entertainers).
Restriction Remain In Place For Romanian And Bulgarian Workers
The Migratory Advisory Committee (MAC) recently reviewed the work restrictions that currently apply to Romanian and Bulgarian workers. These restrictions mean that such individuals do not automatically have the right to work in the UK even though these countries acceded to the EU in January 2007. The MAC recommended that the current restrictions should remain in place as this is intended to manage the number of immigrants coming to the UK. That means that nationals from these countries need to apply for some form of permission to work in the UK if they are to be employed.
Elaine McIlroy
Dundas & Wilson LLP
Elaine.mcilroy@dundas-wilson.com.
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.
