Immigration Law Recent News

For further help or information regarding the articles below, please contact Graeme Kirk gdk@gross.REMOVE-THIS-BARRIER-BEFORE-SENDING.co.uk or Sohan Sidhu ss@gross.REMOVE-THIS-BARRIER-BEFORE-SENDING.co.uk

NEW IMMIGRATION RULES FOR NON-EU STUDENTS

The UK Border Agency (UKBA) has introduced new rules for students and their family members making applications under Tier 4 of the Points Based System. The new rules include the following:-

  1. The student will not be able to work more than 20 hours per week during term time when they are following a degree level course or a foundation degree course.
  2. The student will not be able to work more than 10 hours per week where they are following a course of study below degree level (excluding a foundation degree course).
  3. For family members the new immigration rules include the following:-
    1. The family member will not be able to work if the Tier 4 student has been granted permission to study in the UK for less than 12 months.
    2. The family member will not be able to work if the Tier 4 student is following a course of study below degree level.

If any further information is required regarding students or for any other aspect of the UK immigration system please contact:-
Sohan Sidhu

CIVIL PENALTIES FOR EMPLOYERS - NON EU MIGRANTS

There has been an unprecedented level of prosecutions against employers who have been found to be employing non EU migrants who do not have permission to work in the UK.

The U.K. Border Agency is introducing local immigration teams across the UK who work alongside other agencies, including the police. Around 7,500 officers and staff reorganised into 70/80 local teams will enforce the full range of Immigration Laws including tackling illegal working.

An employer can be issued with a maximum penalty of £10,000.00 per illegal worker. The UKBA have stated that from 19 June 2008 businesses which have been fined will be named on the UKBA website.

The UKBA needs to act in accordance with the Code of Practice and employers can put forward a number of objections to a Penalty Notice which can have the effect of reducing the Civil Penalty. They also have the option of appealing to the County Court.

GROSS & CO. PLACED ON HOME OFFICE LIST OF ADVISERS FOR EMPLOYERS LICENCES

As from 27th November 2008, all employers wishing to recruit foreign nationals who previously needed Work Permits are required to obtain a Sponsor's Licence from the Home Office. Without a valid Sponsor's Licence, recruitment is not possible. As part of the Licensing Process, employers normally receive a site visit from the Home Office to check the employer's HR systems. The Home Office has now produced a list of professional advisers who have developed systems to provide reports for employers which are normally accepted by the Home Office in lieu of site visits.

Gross & Co., the Bury St. Edmunds Solicitors, is the only firm in Suffolk and Cambridgeshire currently accredited by the Home Office to provide such reports. This service is available to any business wishing to apply for a Sponsor's Licence. Graeme Kirk, Senior Partner of Gross & Co., who has specialised in U.K. immigration law since 1980, stated:- "Obtaining a Sponsors Licence will be an absolute requirement for employers wishing to recruit foreign nationals who would currently need Work Permits. By working with companies to provide a report, we can obviate the need in most cases for an intrusive and time-consuming visit to a Company from the UK Border Agency".

EMPLOYERS' LICENSING SYSTEM OPENS FOR APPLICATIONS

The Border & Immigration Agency is accepting applications for employers' licences which will in turn allow the issue of sponsorship certificates under the new Tier 2 Skilled Worker category coming in autumn 2008. All employers who wish to employ foreign non-EEA nationals in the future, including those on existing Work Permits, other than individuals who will hold Tier 1 permits, or already hold permanent residence or status such as spouse/partner, will need to obtain a licence from the Border & Immigration Agency to employ such foreign nationals in the future.

The application process for a licence is complicated, and involves ultimately an on-line application followed by presentation of the appropriate documentation.

Gross & Co. will be pleased to advise and assist clients in relation to their applications for licences, and to represent employers in dealing with the Border & Immigration Agency in relation to the issue of sponsorship certificates.

MAJOR CHANGES TO UK IMMIGRATION PROCEDURES - A SUMMARY OF THE NEW POINTS BASED SYSTEM - TIER 2 AND EMPLOYER SPONSORSHIP

1. Overview
The Government has recently published its Statement of Intent of Sponsorship under the under the terms of the new Points Based System ('Statement of Intent'). The Points Based System ('PBS') will result in the overhauling of the current UK immigration system, and the reduction of the more than 80 current routes of entry into the UK into a tiered system consisting of 5 Tiers. Under the PBS applicants will be assessed against an objective list of criteria and will be required to achieve a minimum number of points to enter the UK under each prospective Tier.

2. Changes affecting employers.
Applicants in four of the five Tiers, Tiers 2-5, will require sponsorship from a UK employer or educational establishment in order to enter the country. This paper deals only with Tier 2, which will cover individuals who previously entered the UK under the Work Permit Scheme. Under Tier 2 sponsoring employers will first need to apply for a Licence, and then will be required to assess the suitability of the migrant for the proposed job under the PBS requirement. This is a critical part of the PBS, and will place major duties and obligations on UK employers. The sponsorship relationship is also intended to provide evidence that the migrant has a genuine job to go to in the UK. The Statement of Intent reflects current Home Office policy intention in respect of sponsorship under the PBS. Whilst parts of the Statement of Intent may change ahead of implementation of the PBS, it offers clear guidance as to how the sponsorship regime will operate, and there are unlikely to be significant changes. The Sponsorship Register, for which employers will apply for Licences, will be open for applications during the first quarter of 2008, and it is likely that Tier 2, which will replace the current Work Permit scheme, will come into effect in the third quarter of 2008. Tier 1, which will cover Highly Skilled Migrants, will come into effect in March 2008, and UK employers will not need sponsorship certificates to employ Tier 1 migrants. However, sponsorship certificates will be required for employers to employ Tier 2 (Work Permit holders) and Tier 5.

3. The process for license application.
Gross & Co. will be pleased to act as Employer's Representative with the Border & Immigration Agency in relation to the Licensing Application, issuing of Sponsorship Certificates, and subsequent applications for entry clearance. (a) A UK employer wishing to obtain a Licence from the Border & Immigration Agency will need to make an application electronically completing the application form. The prospective sponsor will need to provide specified information in relation to the Company, which will vary depending on the nature of the legal entity. If the application is successful, the Licence will be granted for an initial period of 4 years unless withdrawn by the Border & Immigration Agency, and is expected to cost approximately £1,500. Companies will have a choice of applying for a single Licence to cover all their work sites, or multiple Licences. When applying for a Licence, an employer will be asked to give an indication as to the likely number of Sponsorship Certificates it will issue on an annual basis. As yet, no information has been issued as to the cost to obtain and issue a Sponsorship Certificate.

(b) The Border & Immigration Agency will have the power to refuse Licence applications so great care must be taken when applying as without the Licence the sponsor will not be able to issue a Certificate of Sponsorship. Without a Licence, not only will a sponsor not be able to employ foreign non-EEA nationals who do not qualify for Tier 1, but the rights of existing work permit holders to continue employment with the Company will be terminated. (c) If the sponsor is granted a Licence, it will be granted either an A or B status. Most sponsors will be granted A-rating for most of the time and this will make the process easier for them to bring non-EEA nationals into the UK. A sponsor will be come B-rated if he fails to comply with any of its duties and obligations under the PBS and will be required to comply with a time-limited plan to regain an A-rating. Repeat offenders will find their sponsorship Licences ultimately withdrawn.

(d) Sponsorship Certificates will be issued in the form of an electronic number issued by the Border & Immigration Agency.

4. Duties and obligations of the sponsor
(a) Complying with the PBS system In order to issue a Sponsorship Certificate, a UK employer will be required to confirm that the position offered to the foreign national is at least NVQ level 3 or above, and that the foreign national passes the Tier 2 points test. Details of this points test have not yet been published. However the requirements are likely to be similar to the current Work Permit requirements with some important changes. There is likely to be an English language test requirement equivalent to IELTS Band 5.5. For positions with salaries above £40,000 per annum there will be no requirement to carry out a resident labour test. For all other cases where a resident labour test is required under the present Work Permit scheme, it will still be required, and it will become the obligation of the employer to prove if required that the test has been carried out satisfactorily and that there were no suitable resident worker candidates. It is clear that this whole self-certification process is potentially fraught with problems, particularly with position on the border of NVQ level 3, and in relation to the resident labour test. Employers will need to use extreme care, bearing in mind that the licence can be lost in the event of serious breach.

(b) Duties and obligations prior to and during employment
The sponsor is also responsible for a number of significant duties and obligations prior to and during the employment of non-EEA nationals.

Record Keeping
Each sponsor will be required to keep copies of each migrant's passport or UK immigration status document showing evidence of their entitlement to work in the UK. They must also keep the migrant's contact details and be in a position to cooperate with the Border & Immigration Agency providing documentation they consider relevant, such as evidence of the sponsor's recruitment practices. It is also important to note that from 2008 non-EEA migrants will be required to hold UK biometric identity cards and copies of these will have to be kept by the sponsor.

Reporting Duties
Sponsors must report to the Border & Immigration Agency if the sponsored migrant does not turn up for work, or if he is absent for more than 10 working days without reasonable permission, if the sponsor stops sponsoring the migrant, or if there are any significant changes in the migrant's or sponsor's circumstances e.g. change of job or change of salary other than annual salary increase. In addition, there is a duty to report if the sponsor suspects that the migrant is breaching his conditions of leave. In addition, at all times the sponsor must ensure that the migrant is lawfully able to work in the UK. These checks must be carried out at least once every 12 month period and prior to the commencement of employment. Failure to comply with these duties and obligations will not only put the sponsor's ability to issue certificates of Sponsorship at risk, but will also open the sponsor up to possible civil and criminal action, including a maximum fine of &pond;10,000 per illegal worker. Compliance is therefore imperative under the PBS, and indeed if there is full compliance then the sponsor has a statutory defence against civil and criminal action if, despite his best endeavours, he employs an illegal worker.

5. Applications for entry clearance
Under the PBS system, a completely new procedure will be introduced for prospective employees to obtain entry clearances to the UK. Following the issuing of a Sponsorship Certificate by the prospective employer, the prospective employee will need to apply for entry clearance to the nearest British Consulate or High Commission in their country of residence or origin. It is at this stage that all background checks will be made into the application e.g. verifying academic and work references. It is not clear yet as to whether, at this stage, the British Consulate officials will investigate in any way the issue of the Sponsorship Certificate e.g. to check whether in their opinion the position is at NVQ Level 3, or to ask for details of the resident labour test. It is likely that some checks on this aspect will be made at this stage, primarily in relation to the level of the job offered. Once the British Consulate is satisfied with everything, the entry clearance will be granted and the individual will be able to travel to the UK to commence employment. It appears that the British Government has concluded that British Consulates and High Commissions do not need additional resources to carry out the increased work that will be required to issue entry clearances. However, this does mean that applications to employ foreign nationals are likely to take longer than under the present Work Permit system. In addition, no announcement has been made as yet as to the cost of applying for entry clearances.

6. Summary.
These changes represent the most substantial changes to UK immigration law for over 40 years. The PBS is a highly significant change from the current Immigration system. The concept of 'sponsorship' means that great care must be taken by UK employers to ensure full compliance under the new system so that employers are able to efficiently and lawfully operate within the new legal structure.

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