In the light of recent government announcements relating to the cap on migrant workers we asked Fiona Cassidy of Jones Cassidy Jones solicitors to review some of the issues surrounding this matter.

Introduction
The new rules announced by Theresa May on 23 November have generated considerable controversy. These new rules will take effect from April 2011 and this is an opportune time to review the legal position on employing migrant workers. The UK Border Agency has just published new Guidance on Preventing Illegal Working:
http://www.ukba.homeoffice.gov.uk/employers/preventingillegalworking

This document provides practical guidance for employers including how to avoid racial discrimination during this process.


Civil Penalties and Criminal Convictions
Since 29th February 2008 if you have not conducted appropriate checks to establish whether an employee is entitled to work in the UK you may be liable to pay a civil penalty (maximum fine £10,000 per worker). In addition an employer commits a criminal offence if he/she knowingly employs an illegal migrant worker. This could result in a term of imprisonment not exceeding 2 years and or an unlimited fine.

In summary, any EEA national and their spouse/civil partner (special rules apply to Bulgarian and Romanian citizens and workers from A8 countries must register with the Home Office), any Swiss and some Commonwealth/British Territories citizens, do not need permission to take up employment in the UK.

An asylum seeker whose claim is successful is granted refugee status. Refugees and those who have been recognised as requiring humanitarian protection will have no restrictions on the type of work they can do in the UK as long as they continue to hold this qualifying status. Other non EEA workers may work legally if they satisfy the “Points-Based” System.


Points Based Tier System
The Points Based System has 5 Tiers:

* Tier 1 is for highly skilled workers, entrepreneurs, investors and graduate students. From next April Tier 1 will be limited to entrepreneurs, investors and “people of exceptional talent” with an annual limit of 1,000 workers.
* Tier 2 covers skilled workers for example nurses, teachers and engineers with an annual limit of 20,700 places (this figure excludes some workers for example intra-company transfers and those earning more than £150,000).
* Tier 3 (which is currently suspended) is for low skilled workers filling specific temporary labour shortages.
* Tier 4 covers overseas students who may work in the UK during their periods of study subject to certain restrictions.
* Tier 5 deals with temporary workers such as actors or musicians coming to perform in a concert/play and participants in the Youth Mobility Scheme.

Employers wishing to sponsor migrant workers under Tiers 2 or 5 must obtain a Sponsorship Licence and agree to fulfil duties and responsibilities in relation to same. There are detailed Codes of Practice which sponsoring employers should comply with and these are contained on the Border Agency website. If there is a change of employer in relation to sponsored migrant workers e.g. a TUPE transfer, the UK Border Agency must be notified and this must occur with defined time limits.


Recommended Practice
Even if you do not currently employ any migrant workers is it important to ensure that you have policies and procedures in place in order to comply with the law and which would assist in avoiding a successful claim of race discrimination. Employers should:

1. Seek information about ability to work in the UK from all potential appointees (this can be done at any stage of the selection process; most employers chose to seek this information at the same time as proof of academic qualifications or after when the person is provisionally selected for appointment). A consistent policy should be adopted for all selection exercises.
2. Advise all candidates at the outset that you will be checking eligibility. This can be done in the candidate information pack or in any standard letter sent to candidates.
3. Use a standard form/letter to request the information legally required to prove entitlement to work (Lists A and B which are described in the Border Agency Guidance).
4. Train those involved in selection on the procedure to be followed in order to protect the employer and the individual from committing a criminal offence.
5. As lists A and B and the specified documentation required is very technical employers must ensure that when decisions are being taken that the Guidance is considered and if in doubt seek legal advice or consult the UK Border Agency.