Manjit S. Gill QC and Edward Nicholson discuss the UK Border Agency’s rush to make its points based system for employment related immigration lawful.

With an increasingly diverse workforce, employers often fail to fully appreciate the immigration consequences of their recruitment or dismissal practices. This can have dire consequences for employees as well as landing employers in a great deal of trouble. It is therefore important for all those involved in advising in this field to understand those consequences and to tailor their practices accordingly. But immigration law changes so much and so often that this is easier said than done. The requirements for employment of foreign labour and the immigration consequences of the loss of employment in the United Kingdom are complex and cannot be set out in detail here. The complexity has been largely brought about by the move in 2008 to a Points-Based System (PBS) for immigration, the consequences of which are still being considered by the courts.

A recent and important example is the Supreme Court’s decision in R (Alvi) v Secretary of State for the Home Department [2012] UKSC 32 on 18 July 2012.

The judgment focussed on the regime under which people are admitted to the United Kingdom for employment. In substance the Supreme Court found that it was not sufficient for the UK Border Agency merely to set out criteria which might affect the entitlement of an applicant for admission to the United Kingdom or for further leave to remain solely in Guidance published by the UKBA. Instead all such criteria had to be included in the Immigration Rules themselves and therefore subject to the negative resolution procedure in Parliament. So far as this broad principle was concerned the Supreme Court’s judgment was unanimous.

Under the PBS any UK employer wishing to employ staff from outside the countries comprising the European Economic Area must acquire a Tier 2 Sponsor licence. Once accepted as a Tier 2 Sponsor the employer is entitled to assign a specified number of Certificates of Sponsorship (COS) to staff it wishes to employ. The proposed employee is then able to apply for a visa to come to the UK, and will score “points” for his or her Certificate of Sponsorship, without which any application for a visa is bound to fail.

There is an increasingly bewildering set of conditions which Tier 2 Sponsors must meet for the COSs they issue to be effective. Among other things, with the exception of employees who are to take jobs which are classified by the UKBA as “Shortage Occupations”, Sponsors must have carried out a Resident Labour Market test to demonstrate that the job cannot be filled from staff from within the European Economic Area.

In Alvi, there was a measure of disagreement between the Supreme Court judges as to whether matters such as the methodology under which employers must conduct a Resident Labour Market test could constitute a rule rather than simply advice to Tier 2 Sponsors; most of their Lordships thought it was the former.

The UKBA’s response to the judgment has been promptly to place before Parliament a new Statement of Changes to the Immigration Rules Cm 8423 which now includes, in the Immigration Rules themselves, swathes of criteria which previously were included only in its published guidance. In this way, the unlawfulness highlighted in Alvi has become lawful.

The changes in Cm 8423 came into force on 20 July 2012. The Immigration Rules therefore now include chapter and verse of the requirements for the conduct of Resident Labour Market tests, lists of documents previously specified in guidance, “codes of practice” as to the salary to be paid to employees in particular jobs, and the list of jobs regarded by the UKBA as “shortage occupations”.

Cm 8423 was the sixth set of changes in the Immigration Rules laid before Parliament so far in 2012. HC 194, announced in June 2012, brought in a mass of changes most of which came into force on 9 July 2012 but are of little interest to employers. The only exception to this is the change under which those who remain in the UK for a period of more than 28 days after the expiry of previous leave to remain will be refused further leave to remain. That change, which will affect people in the UK applying for new visas as Tier 2 migrants, comes into force from the 1 October 2012.