HR MANAGERS INTRODUCTION TO UK IMMIGRATION COMPLIANCE

Transcription

1 HR MANAGERS INTRODUCTION TO UK IMMIGRATION COMPLIANCE SR3200

2 Introduction This paper is aimed at guiding HR Managers through the Tier 2 (ICT) and (General) Points Based System (PBS) application process for migrant workers. Whilst this is by no means a comprehensive document, it aims to outline the major points that HR Managers should keep in mind whilst completing the process. The UK Border Agency (UKBA) has indicated that they will now be carrying out a pre- licence application review of the HR systems, processes and policies for all companies. For businesses applying for their first sponsorship licence, it is important to keep in mind that this audit will take place BEFORE the application is rated. Businesses that already hold a sponsorship licence are also audited continually throughout the term of their licence. This paper should be used as a guide to ensure that your processes and systems comply with the UKBA audit. Our best practice tips will assist you in complying with achieving an A rating on your sponsor licence. The key areas of this paper are: 1. Resident Labour Market Test (RLMT) 2. Prevention of Illegal Working 3. Personnel File Compliance 4. HR Systems 5. UKBA Audit 1. Resident Labour Market Test (RLMT) Before a company is able to sponsor a migrant worker under the Tier 2 PBS, they must demonstrate that they have advertised the position to the resident labour market, to ensure that British or EU workers have the opportunity to apply. The documents listed below must outline compliance to this, and be kept for the duration of the sponsorship Advertising Examples of acceptable advertising medium include, but are not limited to: Hard-copy advertising (the job advertisement itself, including title and date of publication) Internet advertising (1-2 weeks of screen prints clearly showing where advertisement was placed) Jobcentre Plus (copy of letter confirming details of advert, content, dates and reference number) 1.2. Candidate Responses and Qualifications The following information must be captured: ALL applications received for the position Quantity of applicants short-listed for interview, and contact details Notes from each interview Copies of qualifications and accreditations of ALL candidates

3 2. Prevention of Illegal Working In order to avoid the possibility of heavy fines and penalties being imposed by the UKBA, it is important that businesses ensure that all workers have a legal right to work in the UK. Processes to comply with this criteria must be started early on as leave to remain and enter the UK stamps differ depending on the type of visa. Important basics to keep in mind are: 2.1. Checking right to work in the UK As an employer, you have a duty to prevent illegal working by checking potential employees documents, BEFORE employment commences. You must: Ask for, and take copies of, the original documents which show that the holder is legally allowed to work, before they commence employment, i.e. before the time that they begin work (e.g. 9am) on their first day Be satisfied that the documents presented are genuine and that the person presenting them is both the rightful holder and allowed to perform the work on offer N.B. Repeat checks should take place at least once every 12 months, and it is advisable to ensure that all workers are checked regularly to avoid discrimination claims. Check biometric residence permits 2.2. Defences Should all of the above be carried out, this will enable you to establish a defence against paying a hefty civil penalty should you be found to have employed a worker who does not have a right to work in the UK, and show that your recruitment process is open, transparent and has not discriminated. If you have a sponsor licence under the PBS, a failure to keep records on sponsored migrants could affect the possibility of retaining your A Rating. This is likely to have a public adverse effect on the company itself, as all details are published online. 3. Personnel File Compliance Once you have completed the application process and ensured that your new employee has the right to work in the UK, it is then important to ensure that your file management complies with the criteria in order to remain a Tier 2 Sponsor. All personnel information (for all workers) must be kept on an easily accessible, and appropriate, system, so that it can be extracted for the UKBA upon request. Whilst this does not need to be set out electronically, it is known that the UKBA prefer this as automated reminders can be set up, thus avoiding the likelihood of key dates being missed. The following information must be kept for the duration of employment, and for two years after the migrant sponsorship ends: Passport copies of front and back covers, biographic page, relevant UK Visa stamps and any other relevant pages UK Work Permission (Tier 2 visa) Copy of UK Biometric Card National Insurance Number Intra-company transfers if an employee has transferred between two international branches of the same company, evidence must be kept showing that the migrant worked at the overseas branch prior to application Payslip (salary) copies of migrant s payslip, showing name, NI number, tax code and any allowances and deductions Certificate of Sponsorship (work permit info) Contact details this includes residential address, any telephone numbers etc, and must be updated regularly Record of any absences by the migrant worker In the unfortunate event that the business is wrongly accused or has a penalty imposed, Sterling can assist in lodging an appeal or drafting an objection on your behalf.

4 4. HR systems and Policies Any HR Systems and Policies in place must comply with UKBA criteria in order for the company to achieve/retain A Rating Tier 2 sponsorship. These are: 4.1. Monitoring immigration status and preventing illegal working As outlined in section 2, it is important to ensure that all employees have relevant immigration checks before and during employment. Confirmation that all current and prospective employees have the right to work in the UK, and that all relevant documents are kept, must be retained in an HR System. Processes must also be set up to ensure HR are reminded when expiry dates are approaching 4.2. Maintaining migrant contact details Contact details for all staff must be kept and updated regularly and correctly. Businesses must be able to prove that a robust system is in place to keep details up-to-date in order to comply with UKBA regulations, and in order to present them in a timely manner should they be requested. All employees should be made aware of their duty to update records Migrant tracking and monitoring The business should have a record of how attendance of staff is monitored and recorded on a daily basis, particularly if a migrant (or any employee) is working remotely at a client s site, or at home. Absences should also be recorded, particularly if a migrant does not turn up on their first day at work, or has an unexplained absence of 10 days or more as this must be reported to the UKBA within 10 working days. A specific employee must be responsible for updating the Sponsor Management System where this information is recorded, and their name must also be retained Recruitment - accreditations Recruitment practices and professional accreditations are important as they ensure that the sponsored migrant intends to and is able to perform the job in question correctly. As outlined in section 1, it is important to keep a record of how the candidates for a position were assessed on their suitability, and any professional accreditations which add to this Record keeping As previous outlined in section 3, it is important that all documentation specific to migrant workers is retained. This information includes: any documentation relating to the recruitment of employees, especially time-bound migrants, and a record of how this information is kept and regularly updated.

5 5. UKBA Audit The UKBA will carry out an audit to assess whether a company s HR systems are sufficiently robust to ensure compliance with their responsibilities under the PBS. As previously outlined, this audit will take place before sponsorship is approved, and continually after approval. It is important to note that there is no one set way that the systems need to work, they must simply be appropriate to the nature and size of the company. The key is to ensure that the system in place enables the business to fulfil the PBS requirements. During the audit, the UKBA will investigate with a view to issuing either an A or B rating. All businesses must achieve an A-rating, and a B-rating should only be seen as a temporary measure. B-rated sponsors will be given a timelimited action plan (at an additional cost of 1000) and will need to satisfy the UKBA that they are making significant progress towards achieving the A-rating, or they face the possibility of having their licence removed. Sterling has the ability to carry out a mock audit, to ensure all documentation and systems are correctly in place. This Sterling audit would take place on a random sample of personnel, which will: Be relative to the size of the organisation Include a selection of migrant worker applications, including work permit holders and worker registration applications, as well as British/EU Nationals Include employees who joined prior to and after the introduction of a new right to work document check legislation on 29 February For larger organisations, a minimum of 20 separate files should be reviewed. For each of these files, the following should be completed: Name of employee Employee number 6. Summary 6.1 UKBA will request documentation. This includes, but is not limited to: Copies of ALL relevant immigration documents Contact details (address and phone numbers) of migrants Evidence of the Resident Labour Market Test and all other evidence relating to initial employment Daily attendance of migrants Any evidence of professional accreditations or registrations The original and the current salary, job description, job title and work location of migrants 6.2. A system must be put in place to ensure certain key information is up-to-date. This includes, but is not limited to: The expiry dates of any work permits The repeat check requirement for annual checks on all time-bound migrants Contact details of migrants The attendance record of migrants The current salary, job description, title and work location of migrants 6.3 Various amends to circumstances will need to be submitted, by report, to the UKBA, within 10 days of its occurrence. This includes, but is not limited to: Non-attendance on the first day The tenth day of continuous absence Discontinuation of migrant contact of the termination of the migrant s contract of employment or registration (including where the migrant resigns or is dismissed) The sponsor ending the sponsorship of the migrant Any suspicions that a migrant is breaching the conditions of their leave Any significant changes in the Sponsor s circumstances Any significant changes in the migrant s circumstances, e.g. a change of job salary (but not title or pay rise)

6 About Sterling Sterling is a provider of global relocation services to some of the world s leading companies. Through our service delivery hubs in EMEA, the Americas and Asia Pacific, we help clients achieve their business goals by alleviating the operational challenges of workforce mobility. Using in-house experts and our network of specialist global partners, we offer the full suite of mobility services. Relocating employees receive a dedicated Sterling team member as a single point of coordination, support and advice to ensure every part of their relocation runs smoothly. Sterling s Immigration Programme covers the full coordination of global immigration processes, including management of initial work authorisations, consular visa applications, residence authorisations, registrations, renewal of immigration documents and processing of departure requirements. Client satisfaction is our ultimate goal. We ve retained 100% of our top 10 clients for the past 5 years and last year 99.63% of relocating employees were satisfied with our service. Find out more at

7 Disclaimer Information in this publication is intended to provide only a general outline of the subjects covered. It should neither be regarded as comprehensive nor sufficient for making decisions, nor should it be used in the place of professional advice. Sterling accepts no responsibility for loss arising from any action taken or not taken by anyone using this publication.

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