UK's
Immigration Transformation is Underway
Simeon
Spencer | Partner, London
Rachel Ashwood | Associate, London
The
biggest shakeup of the UK immigration system in 45 years is now fully
underway and progressing at full speed; and employers should not be
left behind. The first of the changes to the system manifested
itself on 29 February 2008 with the introduction of the initial stage
of the new Australian-style points-based immigration system, which represents
the system by which non-EU migrants wishing to come to the UK to work,
study or train must comply. The majority of the remainder of the
changes will be rolled out later this year with the few remaining items
taking effect in the early part of 2009.
Underpinning the new points-based immigration system is a five-tier framework,
summarised as follows:
- Tier 1 – Highly skilled individuals to contribute to growth and productivity;
- Tier 2 – Skilled workers with a job offer to fill gaps in the UK labour force;
- Tier 3 – Limited numbers of low-skilled workers to fill temporary labour shortages;
- Tier 4 – Students; and
- Tier 5 – Youth mobility and temporary workers.
The five tiers will replace the current 80 or so immigration routes that currently exist. Each tier will have different conditions, entitlements and entry requirements for people wishing to live, work and study in the UK.
It
is anticipated that the new system will be more transparent and therefore
easier to understand than its somewhat complex predecessor. Further,
it has been designed so as to attract the most talented migrants with
skills the UK needs to remain a global leader, particularly in the fields
of commerce, finance and technology.
Of particular importance to UK employers are Tier 1 and Tier 2.
Tier 1
Tier 1 is concerned with the admission of highly skilled individuals
and replaces (amongst other immigration categories) the Highly Skilled
Migrant Programme (HSMP). Whilst the new Tier 1 (General) has been
the mandatory application for certain individuals since 29 February 2008,
in June 2008 it has replaced HSMP in its entirety.
Under Tier 1, applicants will score points for qualifications, previous earnings, age and UK work experience. This is broadly similar to the criteria against which HSMP applicants were previously assessed; however, importantly, the provision whereby applicants could gain maximum points for their relevant MBA qualification has been dropped.
Critically, applicants must now also show they have a sufficient level of funds to maintain themselves in the UK for at least the first three months after their proposed entry into the UK. Applicants must also satisfy a test for competency in the English language.
Tier
2
Tier 2 of the new points-based system will replace the current work
permit system in its entirety beginning in Autumn 2008. Any migrant
seeking to enter the UK in this category will need to be sponsored to
do so by a registered employer. As such, all employers wishing
to sponsor prospective employees in this Tier must apply for a license
to employ migrant workers. Further, before a decision to grant
a license is made, account managers from the UK Border Agency may visit
an employer to ascertain the employer’s suitability to comply with its
obligations under the points-based system. These obligations, in
summary, relate to recordkeeping, reporting and compliance duties.
Successful sponsors will be awarded either an “A” or “B” rating. If an employer is granted a “B”-rated sponsorship, this is only a temporary measure and accordingly it must comply with a sponsorship action plan that will set out the steps it needs to take to gain or regain an “A” rating. Where an employer doesn’t comply with this plan, or in any other way falls foul of its obligations under the points-based system, it risks losing its license altogether and thereby its ability to recruit migrant workers.
Employer
Liability
Underpinning the changes to the immigration system is a new tougher
system of liability for employers that hire illegal workers, which
includes civil and criminal penalties and an ongoing obligation to
monitor and review the personnel details of those working in the UK
who require employment permission (introduced 29 February 2008). Employers
who illegally hire workers could now face a maximum civil fine of £10,000
per illegal worker. In addition, if employers are found to have
knowingly hired illegal workers, the penalty is a maximum two-year prison
sentence and/or an unlimited fine.
Simeon
Spencer
Condor House
5-10 St Paul's Churchyard
London • EC4M 8AL
Ph: +44 (0) 20 3201 5520
Fx: +44 (0) 20 3201 5600
simeon.spencer@
morganlewis.com
Dr.
Walter Ahrens
Guiollettstraße 54
60325 Frankfurt am Main
Ph: +49 69 714 007 34
Fx: +49 69 714 007 10
wahrens@morganlewis.com
François
Vergne
68 rue du Faubourg
Saint-Honoré
75008 Paris
Ph: 33 (0) 1 53 30 43 00
Fx: 33 (0) 1 53 30 43 01
fvergne@morganlewis.com