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New rules for employing migrants

The points-based system for non-EEA workers comes into effect this autumn. By Roslyn James

The Government is to introduce a new five tier points-based system for immigration to the UK. Tier 2 is due to replace the existing Work Permits Scheme this autumn. There are steps a business wishing to use migrant workers can take to fully -prepare for the change.

As most migrant workers from within the European Economic Area have freedom to live and work in the UK, the permit scheme and subsequent points system are most relevant to non-EEA workers.
Currently, employers recruiting non-EEA nationals will often have to apply for a work permit. The worker will submit this documentation alongside their visa application to gain entry to the UK.

Later this year, employers will issue a certificate of sponsorship to the prospective worker instead. The employee will use this to apply for permission to come and work in the UK.

Plans for Tier 2 suggest it will closely resemble the current Work Permit Scheme. It will similarly offer a variety of routes, including provisions for intra-company transfers and for filling a position where the job is listed as a 'shortage occupation', in addition to general applications.

Under the general route, points will be awarded to the applicant on the basis of their qualifications and prospective earnings in the UK. As with work permits, the employer must show that they are unable to recruit a suitable worker from within the EEA.

Only registered employers will be able to issue certificates of sponsorship. To become a registered sponsor, an employer must apply to the UK Borders Agency for a licence.

Once licensed, an employer will remain registered for four years. Broadly speaking, a sponsor's obligations include record-keeping and reporting duties, such as notifying the UKBA if a migrant worker fails to turn up.

A sponsor failing to meet its obligations may have its licence withdrawn. In preparation for Tier 2 taking effect, applications to join the register of sponsors can be made now.

Whether or not Tier 2 is relevant to them, employers must act to prevent unlawful employment. Before starting work, every new recruit should be asked for evidence of their permission to work in the UK.

The document or documents showing permission to work should be copied and stored securely, with repeat checks being made where the worker has permission for a limited period.

Failing to carry out these checks could result in a civil penalty of up to £10,000 per worker, while knowingly employing an illegal worker could lead to imprisonment for up to two years and, or an unlimited fine for more serious cases.

Roslyn James is a solicitor in the Employment Team at Maclay Murray & Spens