UK Immigration Your responsibilities as. Presented by: MATTHEW PASSMORE DIRECTOR, OISC Registered PERMITS2WORK LTD

Transcription

1 UK Immigration Your responsibilities as an employer Presented by: MATTHEW PASSMORE DIRECTOR, OISC Registered PERMITS2WORK LTD

2 Overview Who are PERMITS2WORK Points Based System Overview of PBS Sponsorship licences Your duties and responsibilities: How to prevent illegal employment Your responsibilities as an employer New and existing employees How to establish a statutory defence The Cost of Compliance Civil and criminal penalties for non-compliance Other implications of non-compliance Employment law issues to consider Penalties for employing illegal workers Race discrimination Issues on recruitment and dismissal TUPE transfers and immigration

3 Overview cont d Biometric identity cards; the future Potential problems when making an application. How to avoid the pitfalls; following best practice Latest news and changes to UK immigration law PERMITS2WORK comments How can PERMITS2WORK help Questions

4 Who are PERMITS2WORK Niche firm of UK Immigration specialists established in Regulated by the OISC (Office of the Immigration Services Commissioner) to the highest level. Specialise in complex cases and appeals law. We represent corporate clients and individuals on business and personal UK immigration matters. Recognised by UK Border Agency as an assured representative to advise and represent under the Points Based System.

5 Points Based System Overview of PBS Replaced all previous routes to work and study in the United Kingdom for non EEA nationals (Tiers 1-5) Bulgarians and Romanian nationals still require permission to work (e.g work permit) Sponsorship licences Every organisation must hold a sponsorship licence in order to employ non EEA nationals you have obligations and responsibilities As a licensed sponsor you must comply with your sponsorship duties (e.g. Codes of practice, reporting duties and appendix D retaining documents and record keeping). You also have a responsibility to ensure that the employee has the correct permission to work in the United Kingdom and continues to do so

6 Your duties and responsibilities: How to prevent illegal employment Your responsibilities as an employer You need to be satisfied that the person has the correct permission to work beforeemployment commence, for the duration of their employment and for at least two years after their employment ends. You should only accept original documents (as defined by List A and List B) as set out in the comprehensive guidance to the prevention of illegal working. Licensed sponsors are required report to UKBA any changes to a migrants status as set out in the sponsorship licence guidance (change of address, absences from work, end of employment). N.B Employees should be required to notify you of any changes to their immigration status (obtaining Tier 1 General etc). New and existing employees If person subject to immigration control (list B) you must check these documents at least every 12 months. List A documents should only need to be checked once and certified copies retained on file. The individual is responsible for advising HR in any changes to their visa which could affect their immigration status. How to establish a statutory defence You need to be able to establish a statutory defence for every employee. It is vital to ensure that the correct procedures are followed and the requisite documents kept on file. If one or more documents are needed, these must be in the specified combinations.

7 The Cost of Compliance Civil and criminal penalties for non compliance Calculated on a sliding scale of severity Financial penalty of up to 10,000 per illegal migrant worker If you are convicted of knowingly employ illegal migrant workers you can receive an unlimited fine and / or a prison sentence If you have complied with all the requisite document checks you should not be liable for a civil or criminal penalty Failure to adhere to these duties could result in the downgrading or withdrawal of your sponsorship licence. This could mean loss of existing international staff and also carry significant financial implications for the business and its reputation in the local and international community

8 Employment law issues to consider Penalties for employing illegal workers Perform all checks before the person commences employment Race discrimination All prospective employees should be treated equal at each stage of recruitment process (case law; Osborne Clark re: recruitment practices) Issues on recruitment and dismissal Make sure HR policies and procedures reflect the current legal position (Case law; Klusova re: unfair dismissal) TUPE transfers and immigration TUPE arrangements still require the new employer to be a licenced sponsor.

9 Biometric identity cards -the future From 6 th January 2010 all Tier 2 applicants from within the UK receive a biometric identity card instead of a residence permit stamp. This has already been the case for other immigration categories (i.e. Tier 4 students, spouses etc) This will eventually replace the visa stamp in the passport. Both the passport and the ID card serve as evidence of a persons right to work and will state visa conditions and expiry date their previous immigration history

10 Potential problems when making an application If you (or your legal representative) have not made the application, how do you establish a person s right to work whilst an application is pending? Rules are applied from date of valid application. Invalid applications incorrect payment, documents and/or missing information could mean that application is considered out of time. The person has overstayed with no right of appeal. Immigration law and policy changes. Have you read and understood these? Are you up to date? Onus of responsibility is shared between the employer and the individual. Unless the application was made by a legal representative, do not rely on third party assurances of applications being made. This will not serve as a statutory defence or protect you against illegal employment. It is essential that full and meaningful information is retained on a persons HR file. This will be called upon in the event of UKBA investigation or sponsorship licence audit.

11 How to avoid the pitfalls; following best practice Seek professional advice at an early stage Make sure that you understand the application that is being made Familiarise yourself with all legislative and policy changes where appropriate Plan ahead. Do not leave applications to chance.

12 Latest updates and changes to UK Immigration Law New points criteria for Tiers 1 and 2 Tier 2 (ICT) 12 months previous experience, no route to settlement Tier 1 (General) bachelors degree, higher earnings criteria Clearer guidance on sponsor takeovers, mergers and demergers Submission fees have increased! Quarterly updates to codes of practice published in March 2010

13 PERMITS2WORK Comments UK immigration is an increasingly complex area of law. The pace of change is fast and wide reaching. HR policies and procedures need to reflect current legislation and recruitment practices. The burden of responsibility is with the both the employer and individual. A sponsorship licence does not guarantee or assure UKBA that you are up to date with the latest changes and policy guidance. Each case must be considered and dealt with on its own merit. Having a sponsorship licence does not equip HR with all the necessary tools or knowledge on how to make an effective application. The cost of getting it wrong could mean: Applications are refused unnecessarily possibly without a right of appeal The applicant becomes an overstayer and is required to leave the UK. S/he could face a ban from reentering the UK Your relationship with UKBA is brought into question on current and future applications Your sponsorship licence could be downgraded or even withdrawn Your reputation as an employer is damaged (if you do not take that persons immigration matter seriously).

14 How can PERMITS2WORK help FREE assessment on all UK immigration matters; corporate and personal applications. We will give you a quick summary of: What options are available and our advised solution Deadlines and timing issues to be aware of Immigration issues involved Any relevant policies or procedures that must be followed We are used to dealing with complex and difficult applications on behalf of clients and still getting a successful result We are recognised by the UK Border Agency as an assured representative. This means we can provide specialist advice and services on the sponsorship licence and the Points Based System. Our audit procedures have been assessed by UKBA! We undertake audit services for clients, to make sure that HR systems and procedures are in line with UK Border Agency standards. We provide legal representation to Tribunal hearings, working with City barristers.

15 Questions? If you have any questions on any UK immigration issue, contact Matthew Passmore on (direct) or Thank you for your time!