UK Immigration: A Changing Tide

September 2010

Since November 2008, employers wishing to sponsor skilled workers from outside of the European Economic Area (EEA) have been required to join a register of sponsors under Tier 2 of the Points Based System (PBS). In addition, sponsors are required to follow strict compliance procedures and undertake thorough legal right to work (LRTW) checks for foreign nationals.

Increased UK Border Agency visits – Autumn 2010

Under the provisions of the Tier 2 Licence, the UK Border Agency (UKBA) reserve full rights to audit all immigration files and legal right to work documents held by sponsoring organisations. In particular, sponsors are required to maintain a comprehensive list of documents (as set out in the relevant policy guidance) to establish that the correct procedures have been followed prior to assigning a Certificate of Sponsorship (COS) to a sponsored migrant. These compliance obligations apply both to intra company transferees and “new hires” under Tier 2 (General).

We have witnessed a sharp increase in the number of UKBA visits to existing sponsors in recent weeks. All sponsors should expect to receive a compliance visit over the next few weeks and very little notice is normally given of the arrival of the compliance officer. It is therefore imperative for employers to ensure that they have the HR systems in place to meet the requirements set out in the Tier 2 policy guidance.

In light of the advent of the new coalition Government, it also appears very likely that obligations imposed upon sponsors will continue to change and become more arduous. Employers must be ready for greater scrutiny of their existing sponsorship management duties. This is set to continue as the Government seeks to show that it has control of the UK Immigration regime and is meeting its stated ambition to reduce the number of sponsored migrants in the UK.

Compliance

It is essential for employers to ensure that they have the correct HR practices and procedures in place to fulfil the various sponsorship duties and to meet the standards set by the relevant policy guidance, immigration rules and the duties imposed by primary legislation. Compliance officers generally undertake a thorough review of the key areas of compliance and will ask to see evidence of the relevant record keeping and reporting systems.

Penalties and Sanctions

The penalties for non-compliance under Tier 2 can be severe. Employers found not to be fulfilling responsibilities set by the UKBA could face being downgraded to a lesser rating, with associated restricted practices imposed on the ability to sponsor migrant workers; or ultimately they could face being removed from the register of sponsors altogether, with any existing migrant workers being forced to either seek alternative employment within the UK or to leave the country.

UKBA has clearly set out five key areas of HR practice that must be focused upon. These include myriad record keeping, tracking and monitoring obligations.

As well as the penalties and sanctions imposed for non-compliance under PBS, there remain tough civil and criminal penalties for employers that employ illegal workers in the UK. Employers have full responsibility to check migrant workers immigration status prior to commencement of employment and then every year thereafter. Failure to undertake these checks will lead to civil penalties including fines for up to £10,000 per worker and in some cases prosecution under criminal law with custodial sentences of up to two years. Failure to adhere with the legislation around the prevention of illegal working will also have a negative impact upon the ability to remain as a licensed sponsor under Tier 2 PBS.

How we can help

Never before has it been more important for all sponsors to comply with the requirements set out by legislation, regulation and policy. Failure to do so not only threatens the success of global mobility strategies, but also the ability of employers to continue to employ migrant workers.

Magrath LLP has been assisting clients with pre and post licence visits since the inception of Tier 2 in 2008. We have a wide ranging understanding of what the UK expects from a sponsor visit.

We have designed a thorough health-check offering, which will review current practices in respect of sponsoring migrants under Tier 2 PBS. This includes:-

  • Examining current record keeping systems and HR processes and advising on how to manage responsibilities set out by UKBA;
  • Reviewing sample HR files/records to ensure compliance obligations are met;
  • Reviewing immigration policies and handbooks to ensure the correct legal right to work polices are in place;
  • Reviewing the mechanics for on-boarding and annual immigration checks;
  • Advising on ways to improve the gathering and record keeping of evidence, in line with the policies of UKBA;
  • Reviewing on-line systems to ensure data captured meets the standard set by UKBA; and
  • Liaising with key personnel within organisations (such as designated authorising officers, key contacts and HR officers) to advise on these issues and to provide immigration training.

Please contact Immigration@magrath.co.uk for further detail in respect of any of these issues.