Employing migrant workers in the spotlight

Published: 23rd October 2009

As Baroness Scotland, the Attorney-General, recently demonstrated it's very easy to make mistakes when employing migrant workers. If someone who drafted the legislation and was responsible for getting it through Parliament can get it wrong, you may well ask what hope is there for the rest of us? We thought it would be helpful to highlight some of your obligations around employing workers from outside the European Economic Area and some key points to watch.

Keep copies of documents for all employees

As an employer you must obtain the right to work documents before any individual starts to work for you. This is by:

Obtaining the individual's original documents as specified in the relevant list. There are 2 lists from the Immigration and Border Agency:

List A documents show that the holder is not subject to immigration control or has no restrictions on their stay in the UK. For example a British passport or other passport/travel document endorsed to show the holder is exempt from immigration control.

List B documents demonstrate that the individual can work in the UK for a limited period. These usually have to be given in a prescribed combination. For example a work permit in combination with a document showing leave to remain in the UK or a document issued by the previous employer or a Government Agency which contains the national insurance number of the individual in combination with a document issued by the Home Office with an endorsement indicating the holder can stay in the UK and is allowed to do the work in question.

Checking the documents as specified i.e. photo, name, date of birth, expiry of visa and correct authorisation.
Keeping copies of the documents.

It was the last of these requirements that Baroness Scotland did not comply with. Although she carried out the checks, because she was unable to provide the specified evidence that she had undertaken the checks she received a fine of £5,000.

You must also ensure that no new employee performs any duties before their right to work documentation is seen and checked. Irrespective of whether it is believed that a particular recruit may represent a "risk", you must rigidly apply the checks consistently to avoid potential discrimination claims from those who are checked.

You also must show you have a robust system for tracking the visa expiry of all migrant workers. For those migrant workers that started after 29 February 2008 a system has to be in place to ensure the visa is checked on a 12 monthly basis unless the migrant has indefinite leave to remain in the UK.

Watch the transitional rules around the new points-based system

Under the new immigration system, all migrant workers have to be sponsored before they come to the UK. Under the system of sponsorship, you as the employer must comply with onerous record-keeping and reporting obligations. From 27 November 2008 all work permit holders seeking to extend their permission must be sponsored under Tier 2 (note that applications for work permits are presently still allowed for Bulgarian and Romanian nationals). Any change in role or employer after 27 November 2008 means any work permit holder will be required to obtain a Certificate of Sponsorship from you as their employer.

Before any new role is filled by a migrant worker you must legitimately discount the UK resident labour force. Remember that under the new rules to satisfy the resident labour market test most roles must be advertised in the UK including with the Job Centre Plus for 2 weeks (likely to change to 4 weeks by the start of 2010) and you must have been unable to fill it from UK (or EU) workers. This will restrict your ability to recruit migrant workers even if someone is thought to be the best person for the job.

Register as a sponsor

Employers must first register as sponsors and obtain a license in order to employ any migrant worker under the new system. When applying for the licence, you agree to undertake certain responsibilities that include:

ensuring any migrant worker is legally entitled to perform the role in question;
not employing anyone without permission to work and ceasing to employ anyone whose permission lapses for any reason;
only issuing Certificates of Sponsorship to migrants who meet the criteria and are likely to comply with their conditions of leave to remain in the UK.

The cost for applying for a licence is £300 for a company with charitable status or a small employer (as assessed by the Companies Act 2006, currently less than 50 employees) and £1,000 for all others. In addition there is a fee (currently £170) for each Certificate of Sponsorship issued. The license has to be renewed every 4 years at which point a fresh licence fee is payable. If you do not comply with your obligations, there is a genuine risk that you will cease to be able to be a sponsor in the future, severely limiting your ability to engage migrant workers.

Monitor migrant workers

You must keep full contact details of migrant workers, including address and phone numbers. You must also maintain a history of these contact details and there must be a suitable system in place to update them. You should ensure that full personnel files are kept, including copies of any academic and professional qualifications.

What is particularly important to remember and easy to overlook in practice, is that you must report to the UK Border Agency (UKBA) within 10 days of:

the migrant worker not turning up for the first day of work;
the migrant worker being absent for more than 10 working days without reasonable permission;
the migrant worker's contract of employment being terminated (by resignation or dismissal);
you ceasing to sponsor the individual for any reason (for example the migrant worker becomes the spouse of a British citizen);
any significant changes in the migrant worker's circumstances or those of you as the employer; or
any suspicion of the worker breaching his conditions of leave to remain.

Watch your obligations on a TUPE transfer

One circumstance where these issues may be overlooked, is when migrant employees are transferred to you under TUPE. You must either already be a licensed Sponsor or you must apply to become a licensed sponsor within 28 days of the transfer. If your application is successful remember your duties as a Sponsor, outlined above, apply to all migrant employees that transfer. The safe approach will be to obtain the relevant documents from all transferring employees yourself, but at the very least you must check that you have records of the checks having been undertaken for all staff. Where you are an existing sponsor and transfer staff to a third party you also have an obligation to inform the UKBA within 28 days of the transfer.

If you fail to become a licensed sponsor you may lose valued employees as it will result in the curtailment of the migrant's permission to stay in the UK to 60 days. If the migrant then works beyond the 60 days he or she would be working illegally. If you as the new employer find yourself in this situation and dismiss the employee to avoid any illegal working, this will be bad for employee relations and such a dismissal may well be unfair because no reasonable employer would fail to make the application to become a sponsor. If you do not currently have a licence and your application is refused you would have to take steps to dismiss the employee fairly within the 60 day period.

What is the risk for my company?

If you ignore your obligations, the sanctions are very serious. As Baroness Scotland found out minor unknowing breaches result in a hefty fine, but more seriously:

if you knowingly and deliberately employ an illegal immigrant you could receive a prison sentence of up to 2 years and/or an unlimited fine;
if an offence is knowingly committed with the consent of the person who has responsibility for employment, both the company and the person will be treated as committing the offence; and
if you unknowingly employ an illegal worker there are civil penalties to a maximum of £10,000 per illegal worker.

If you do find yourself to be in breach of the rules take advice and act quickly as the penalties may be reduced if you have reported the individual concerned.

Do not ignore these risks

It is very important that you have adequate systems in place to ensure that you carry out the specified checks for all employees and potential employees working for you. In addition, where employing migrant workers (whether because you intended to do so or because they transfer to you) robust systems should be put in place to ensure information is obtained and updated as well as notifying the UKBA when you need to do so.

If you need any advice upon any of the issues raised, please telephone your usual contact in the Mace & Jones Employment and HR team in Liverpool: 0151 236 8989 or Manchester: 0161 214 0500.

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