It is two years this month since tier 2 of the points based system replaced the work permit scheme. If you employ migrants under the work permit scheme (which has been closed to new employees since November 2008), it is vital that you check whether they are complying with the conditions on their work permit, especially if their leave is due to expire or they are expecting to be eligible for settlement. We are being instructed on an increasing number of situations where due to a promotion, a person's employment has become unauthorised and as a result their continuing employment is illegal and their UK based careers have been put in jeopardy. Their employers may also face sanctions and severe repercussions.
The problem arises because under the work permit scheme approval has to be sought from UKBA before any significant changes were made to the location, salary, level of job (including changes in duties due to promotion, demotion or restructuring) or working hours to that permitted in their original work authorisation. These changes are regarded under the work permit scheme as a change of employment and so required, before implementation, a new application under the work permit scheme, involving a new resident labour market test or, if later than November 2008, by way of a CoS duly issued in compliance with the requirements of tier 2 of the points based system. The consequences of not doing so are potentially serious for both the employer and employee.
For the employee this could mean revocation of the work permit by the UKBA, curtailment of their leave and removal from the UK. It could also mean that they have been in unauthorised employment and so have been in breach of their visa, the implication of which is a mandatory re-entry ban for 12 months. For the employer it may lead to difficulties in employing migrants in the future and in some cases may lead the UKBA to instigate legal proceedings. If the employer has a sponsor licence, this may also have adverse implications on the licence. It may also give rise to a claim in negligence brought by the ex-employee
For amendments to the personal details of employees or minor changes to the information held by the UKBA, the employer is required to complete a notification of technical change of employment form. This is only for changes where the individual would continue to work under the same terms and conditions and continue to meet the work permit criteria.
The situation under tier 2 is materially different. Where the sponsored migrant is continuing to work for the same employer, but they move to a new job within the same standard occupation classification (SOC) code, this is not regarded as a change of employment and they will not have to make a new application unless the salary is reduced and/or they are changing jobs in the same SOC code from one that is on the shortage occupations list to one that is not. If the new job is in a different SOC code then the employer has to proceed as if it was a new start and comply with the rules for issue of a CoS and ensure the migrant varies their leave to enter or remain before the change of job becomes effective.