Employers of non-European workers face radical change to rules

The Home Office has told employers that the deadline for applying for a sponsorship licence to enable them to employ migrant workers under the new tier two category (replacing work permits) when it comes in is 1st October. This will apply to all workers from outside the European Economic Area (EEA).

Employment law specialist Emma Peacock of Pinsent Masons, the law firm behind OUT-LAW.COM, said that many employers have delayed dealing with the issue. For some, this is because of the summer break; but it is also because employers were waiting for much-needed guidance from the UK Border Agency, a shadow agency of the Home Office. That guidance was only published in mid-August.

"This is the biggest shake-up in immigration rules for employers in the last 40 years," said Peacock. "A lot of employers won't have dealt with this latest piece of red tape yet – but those who employ or want to employ workers from outside Europe need to ensure that they have gone through the process and can sponsor them."

The Government is overhauling the systems governing foreign workers and dividing it into five tiers. The October deadline is in relation to tier two, which will replace the work permit system. Until now employers have been able to obtain work permits for three of four years at a time for workers, Peacock said. But now they will have to remain actively involved in ensuring that workers are entitled to continue working and monitor them at least annually.

"It is all part of the Government's strengthening of the borders; it puts much more of the onus on employers to have on-going responsibility for any migrant workers they employ," said Peacock.

The new Tier two system will come into force on 1st November but the Home Office has said that applications must be received by 1st October if they are to be processed in time.

Tier two applies to skilled workers and Peacock said that frequently members of Executive teams are in the UK under work permits, so these changes affect companies across the spectrum. She said "I have advised a whole variety of clients from large retail banks, large blue chip companies and universities to retail organisations and charities on this," she said. "Research and development is another area where this is relevant. This often applies to skilled workers with a particular niche because it has to be shown that there is not an available EU worker who could do the job."

For the first time employers will have to register for the right to employ migrant workers at all. This involves becoming a sponsor. That will for the first time give employers ongoing responsibilities for ensuring the eligibility of migrant workers for the jobs they do.

The new rules demand that employers monitor the immigration status of employees and prevent illegal working; that they maintain contact details for migrant workers; that they keep records of their treatment of the workers; that they notify the Home Office if a migrant worker is absent from work without permission for 10 days; and that they ensure that workers have the appropriate qualifications and accreditations to do the work required of them.

Sponsoring employers' compliance with these requirements will be checked by Home Office officials and sponsors who pass the tests will be publicly rated as A or B depending how closely they comply. Would-be sponsor companies can also be refused a licence altogether.

Peacock said that stakes were raised earlier this year when the Government increased the penalties for improperly employing migrant workers.

"This has happened in conjunction with new rules in February which doubled the fine payable if an employer has been found to be employing migrants illegally," she said.

The Border Agency told OUT-LAW that existing work permits will continue to be valid until their expiry date. If changes are required to work permits, including extensions and renewals, that will trigger the new sponsorship regime.