Q: Who currently needs a work permit to allow them to work in the UK?

A: Most European Economic Area nationals do not need a work permit to work in the UK. But, nationals from the Czech Republic, Estonia, Latvia, Lithuania, Hungary, Poland, Slovenia and Slovakia are subject to the Workers Registration Scheme. Romanian and Bulgarian citizens will not have an automatic right to work in the UK until at least the end of 2008, so must apply for a work permit and an accession worker card.

There are many other overseas nationals who can work in the UK without obtaining a work permit including Swiss citizens, spouses and dependants of British citizens or work permit holders, highly skilled migrant visa holders and students. The Border & Immigration Agency website details when a work permit is required.

Q: How can I check that someone is able to work in the UK and what are the penalties if I don’t?

A: On 29 February 2008, the rules on employing illegal immigrants changed as a result of the Immigration, Asylum and Nationality Act 2006. The Act creates two new offences, which replaced the previous offence under section 8 of the Asylum and Immigration Act 1996. By employing someone not entitled to work in the UK the employer will be liable to pay a civil penalty of up to a maximum of £10,000 per employee.

Knowingly employing someone not entitled to work in the UK means the employer can face a maximum fine of £5,000 per illegal employee and up to six months’ imprisonment. In more serious cases, a Crown Court can impose an unlimited fine and up to two years’ imprisonment.

To establish a statutory defence to avoid payment of the civil penalty, an employer must check and copy one of a designated combination of original documents on an approved list for each employee. In respect of new employees, these checks must be carried out before employment commences. The defence cannot be established after employment commences nor can it be established where an employer knowingly employs an illegal worker. Employers should take care to ensure that they check and copy the correct documents.

Q: What are the changes to UK immigration law and when are they being implemented?

A: The Home Office is in the process of replacing all the existing work permits and entry schemes with a single points-based system (PBS). The PBS is being implemented gradually during 2008 and 2009 with the first phase introduced on 29 February 2008 for overseas nationals already in the UK switching into the highly skilled migrant programme (renamed Tier 1 ­ General).

Tier 1 includes highly skilled workers, entrepreneurs, investors and post-study work. The new system is being piloted in India, where all applicants wishing to come to the UK as highly skilled migrants will be required to apply under Tier 1 of PBS. Rollout for the rest of the world is scheduled for this summer.
The Home Office published its proposals for Tier 2 applications in May 2008, and they are expected to come into force this autumn.

Tier 2 will replace a number of existing routes to the UK, including the work permit system. It will require a number of things from a potential employee, including a job offer, certificate of sponsorship from a licensed sponsor and to have scored enough points to apply. Points are based on sponsorship, qualifications and prospective earnings, among other things.

Q: How do I apply to become a sponsor employer and how much does it cost?

A: Under the points-based system, an employer who wants to act as a sponsor requires a licence. To get a licence, you must be a legitimate organisation working within the law in the UK, that must not be a threat to immigration control and must fulfill its sponsorship duties (which include onerous record keeping and reporting requirements). Potential employer sponsors must register online, complete an application, and send it to the BIA with the appropriate fee (between £300 and £1,000 for Tier 2 general licences). Approved sponsors will appear on a public register and will be able to apply for certificates of sponsorship when the BIA starts taking applications later in the year.

Q: Are there other things I need to be aware of so that I don’t break the law?

A: Discrimination as a result of national origins is common and many stereotypes are so ingrained that staff may not even realise their views or behaviour are discriminatory. To limit risk ensure you have an up to date equal opportunities policy and that staff are trained in equal opportunities. Familiarise yourself with the cultural or religious needs of your staff and try to be flexible to accommodate those needs were possible.

David Carmichael is a partner and head of employment law at Pannone in Manchester

www.pannone.com
www.bia.homeoffice.gov.uk