The UK government has announced an overhaul of the whole UK immigration system, beginning with changes to measures to prevent illegal working and amendments to the Highly Skilled Migrants' Programme with effect from 29th February 2008.

All employers with a workforce in the UK will be affected to some degree, whether or not they employ any non-EU nationals to work in the UK.

Prevention of Illegal Working - Establishing the "Statutory Excuse"

For the last 10 years employers have routinely checked prospective employees' right to work in the UK as a safeguard against criminal penalties under the Asylum & Immigration Act 1996 should any of their workforce be found to be working without the correct immigration status.

The regime established by the 1996 Act will be repealed and replaced by sections 15-25 of the Immigration, Asylum and Nationality Act 2006 with effect from 29th February 2008.

The broad framework of the new regime mirrors that under the 1996 Act: in order to have a "statutory excuse" or defence in the event that any of their workforce is found to be working illegally, employers must have sight of and retain copies of specified original documentation. However, significant changes have been made regarding the frequency of checks required and also the penalties for those who have not carried out the checks and are subsequently found to have employed illegal workers.

The lists of documents which an employer must ask to see have been updated (see List A and List B below). If an individual is only able to provide documents from List B, to retain the "statutory excuse" employers will now be obliged to repeat the checks at least once every 12 months during the life of the employment, or until the employee is able to present documents from List A, indicating a permanent right to work in the UK.

Other key requirements to ensure a valid "statutory excuse" for employees beginning work on or after 29th February are:

  • The checks must be completed before the employment commences Only original documents are acceptable
  • Employers must:
    • Check that any photographs are consistent with the prospective employee's appearance
    • Check that dates of birth are consistent across documents presented and correspond with the prospective employee's appearance
    • If two documents are presented bearing different names ask for further documents that explain the difference, e.g. marriage certificate
    • Check that expiry dates of leave any leave to enter or remain in the UK have not passed
    • Check any UK government endorsements (stamps, visas etc) to see if the prospective employee is entitled to do the type of work proposed
    • Make a careful examination to satisfy themselves that the documents are genuine, have not been tampered with and belong to the prospective employee (provided careful examination is made, if any forgery is not "reasonably apparent" to a lay person, the statutory excuse will remain valid)
    • Photocopy or scan each original document (copies/scans must be in a format that cannot subsequently be altered). Copies of passports and travel documents should include the front cover, pages with the holder's personal details and any page containing UK immigration endorsements relevant to the right to work; all other documents must be copied in their entirety
    • Repeat the checking process in its entirety at least once a year for employees presenting documents from List B
    • Retain copies for two years after the employment ends

To avoid the risk of claims of unlawful discrimination, employers should ask all prospective employees to produce documentation proving their right to carry out work for the employer in the UK and apply identical recruitment procedures throughout.

Although the following rules are not new, a reminder that nationals of countries that have recently joined the European Union are subject to certain restrictions on their right to work in the UK. In addition to carrying out the checks required by the 2006 Act employers must take the following steps to avoid criminal prosecution and fines:

  • for citizens of so-called "A2" countries (Romania and Bulgaria), establish either that they hold a valid accession worker authorisation document from the Border & Immigration Agency or are otherwise exempt (e.g. because they hold Highly Skilled Migrant status) and take copies of the relevant documents
  • for citizens of "A8" countries (Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Slovakia, Slovenia) ensure that they register with the Border & Immigration Agency within one month of starting work - the Border & Immigration Agency will send confirmation direct to the employer, which should be held on file.

Certain documents e.g. Application Registration Cards issued to asylum seekers must be verified by the Border & Immigration Agency's Employer Checking Service - for more information go to  http://www.bia.homeoffice.gov.uk.

New Penalties for Employing Illegal Workers

Under the 1996 Act the only sanction for employers found to be employing illegal workers for whom the proper checks had not been carried was a criminal penalty and prosecutions have been rare. To make it easier to enforce the new regime the 2006 Act introduces a new civil penalty. Employers who are found to employ illegal workers and who cannot establish the "statutory excuse" will be subject to fines of up to £10,000 per illegal worker. Any employer who knowingly employs an illegal migrant will commit a criminal offence. The penalty if convicted on indictment is an unlimited fine and/or up to two years' imprisonment.

New Points Based Immigration System

At present there are about 80 different immigration categories applicable to those who wish to come and work or study in the UK. The government is seeking to simplify this to a points-based, five tier framework as follows:

Tier 1: Highly skilled individuals who will contribute to growth and productivity (currently Highly Skilled Migrants Programme, which is already points-based)

Tier 2: Skilled workers with a job offer to fill gaps in the UK labour force (currently Work Permits)

Tier 3: Limited numbers of low-skilled workers to fill temporary labour shortages

Tier 4: Students

Tier 5: Youth mobility and temporary workers: people allowed to work in the UK for a limited time to satisfy primarily non-economic objectives

With the exception of some minor changes to the already-established Highly Skilled Migrant's Programme ("Tier 1" in the new framework) for applications on or after 29th February, very little of the detail of the new scheme is known. The government intends to roll out the new rules over an unspecified period.

However it is clear that the government intends to increase the burden on employers who it sees as the main beneficiaries of immigration. In particular:

  • Fees: Employers already pay substantial fees for work permit applications. Early indications suggest however that costs are set to rise. The government has stated that "Those who benefit most from the immigration system will pay proportionately more to help fund the wider transformation of the system. This would apply to tier 1 and 2 applicants with costs for tiers 3, 4 and 5 set at or below recovery levels."
  • Licensed sponsors: applicants in tiers 2 to 5 will require a certificate of sponsorship from a licensed sponsor. Sponsors will be required to take on some of the burden of enforcing immigration law e.g. by reporting if a migrant fails to show up for their first day of work or their contract is terminated. Although there is no official word on the subject, it seems almost inevitable that the government will seek to impose further charges for the privilege of becoming a licensed sponsor.

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LIST A

Documents which provide an ongoing excuse

  1. A passport showing that the holder, or a person named in the passport as the child of the holder, is a British citizen or a citizen of the United Kingdom and Colonies having the right of abode in the United Kingdom
  2. A passport or national identity card showing that the holder, or a person named in the passport as the child of the holder, is a national of the European Economic Area or Switzerland
  3. A residence permit, registration certificate or document certifying or indicating permanent residence issued by the Home Office or the Border and Immigration Agency to a national of a European Economic Area country or Switzerland
  4. A permanent residence card issued by the Home Office or the Border and Immigration Agency to the family member of a national of a European Economic Area country or Switzerland
  5. A Biometric Immigration Document issued by the Border and Immigration Agency to the holder which indicates that the person named in it is allowed to stay indefinitely in the United Kingdom, or has no time limit on their stay in the United Kingdom
  6. A passport or other travel document endorsed to show that the holder is exempt from immigration control, is allowed to stay indefinitely in the United Kingdom, has the right of abode in the United Kingdom, or has no time limit on their stay in the United Kingdom
  7. An Immigration Status Document issued by the Home Office or the Border and Immigration Agency to the holder with an endorsement indicating that the person named in it is allowed to stay indefinitely in the United Kingdom or has no time limit on their stay in the United Kingdom, when produced in combination with an official document giving the person's National Insurance Number and their name issued by a Government agency or a previous employer
  8. A full birth certificate issued in the United Kingdom which includes the name(s) of at least one of the holder's parents, when produced in combination with an official document giving the person's permanent National Insurance Number and their name issued by a Government agency or a previous employer
  9. A full adoption certificate issued in the United Kingdom which includes the name(s) of at least one of the holder's adoptive parents when produced in combination with an official document giving the person's permanent National Insurance Number and their name issued by a Government agency or a previous employer
  10. A birth certificate issued in the Channel Islands, the Isle of Man or Ireland, when produced in combination with an official document giving the person's permanent National Insurance Number and their name issued by a Government agency or a previous employer
  11. An adoption certificate issued in the Channel Islands, the Isle of Man or Ireland, when produced in combination with an official document giving the person's permanent National Insurance Number and their name issued by a Government agency or a previous employer
  12. A certificate of registration or naturalization as a British citizen, when produced in combination with an official document giving the person's permanent National Insurance Number and their name issued by a Government agency or a previous employer
  13. A letter issued by the Home Office or the Border and Immigration Agency to the holder which indicates that the person named in it is allowed to stay indefinitely in the United Kingdom when produced in combination with an official document giving the person's permanent National Insurance Number and their name issued by a Government agency or a previous employer

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LIST B

Documents which provide an excuse for up to 12 months

  1. A passport or travel document endorsed to show that the holder is allowed to stay in the United Kingdom and is allowed to do the type of work in question, provided that it does not require the issue of a work permit
  2. A Biometric Immigration Document issued by the Border and Immigration Agency to the holder which indicates that the person named in it can stay in the United Kingdom and is allowed to do the work in question
  3. A work permit or other approval to take employment issued by the Home Office or the Border and Immigration Agency when produced in combination with either a passport or another travel document endorsed to show the holder is allowed to stay in the United Kingdom and is allowed to do the work in question, or a letter issued by the Home Office or the Border and Immigration Agency to the holder or the employer or prospective employer confirming the same
  4. A certificate of application issued by the Home Office or the Border and Immigration Agency to or for a family member of a national of a European Economic Area country or Switzerland stating that the holder is permitted to take employment which is less than 6 months old when produced in combination with evidence of verification by the Border and Immigration Agency Employer Checking Service
  5. A residence card or document issued by the Home Office or the Border and Immigration Agency to a family member of a national of a European Economic Area country or Switzerland
  6. An Application Registration Card issued by the Home Office or the Border and Immigration Agency stating that the holder is permitted to take employment, when produced in combination with evidence of verification by the Border and Immigration Agency Employer Checking Service
  7. An Immigration Status Document issued by the Home Office or the Border and Immigration Agency to the holder with an endorsement indicating that the person named in it can stay in the United Kingdom, and is allowed to do the type of work in question, when produced in combination with an official document giving the person’s permanent National Insurance Number and their name issued by a Government agency or a previous employer
  8. A letter issued by the Home Office or the Border and Immigration Agency to the holder or the employer or prospective employer, which indicates that the person named in it can stay in the United Kingdom and is allowed to do the work in question when produced in combination with an official document giving the person’s permanent National Insurance Number and their name issued by a Government agency or a previous employer