Name of weekly column: Speechly Speak
This week's contributor: Nick Hobson, solicitor, Speechly Bircham

Cruel, cruel summer ahead

HR professionals thinking that this summer will be quiet should think again! As part of the government’s overhaul of UK immigration laws, the UK Border Agency (the renamed arm of the Home Office which deals with immigration matters) is introducing a new Australian style Points Based System (the PBS). 

The current work permit scheme known to most HR professionals will be terminated. In its place, employers wishing to recruit non EEA nationals will be required to register as 'sponsors' and agree to onerous policing and compliance duties before they can then issue their own 'Certificates of Sponsorship'. The PBS is due to go live in Autumn 2008.

In order to register to become sponsors, employers must complete an online application form and submit numerous documents to the UK Border Agency. Employers will need to state in the application how many non EEA nationals are currently in their employment. 

Whereas it might be easy to tally up the number of current work permit holders, this could be the very first time that employers are required to trawl through their HR files and inform the government of the number of non-EEA employees. So don’t be caught out thinking this is just about work permit holders – it is much wider than that!

The employer will then be visited by a compliance officer. Realistically, these visits are going to be a headache for HR professionals. The visits can either be planned or unannounced and the compliance officers will have the power to review HR files to ensure that HR teams have been conducting the relevant right to work checks and have been placing copies of original documents on files. 

Employers who have not been doing this for all employees will need to go through all their HR files to check each and every employee’s right to work in the UK and check that they have copies of original documents to evidence this. For larger organisations this could be a huge administrative task.

For those employers who have previously or are currently employing work permit holders, compliance officers will also be checking that the UK Border Agency’s records are up-to-date and correspond with the work permit holder’s current employment. 

For example, compliance officers will be checking that their records show the current address of the employer, the employer’s current name, the current title position and salary for each and every work permit holder. For employers who have not been updating the UK Border Agency of any changes to a work permit holder’s employment could be heavily penalised and the Sponsorship application could be refused. 

Employers also need to be aware that if they are applying to register as a sponsor, they could be welcoming a fine from a compliance officer. On 29 February 2008, the government introduced new penalties for employing migrants without the requisite permission to work in the UK. Employers can be fined up to £10,000 on the spot and any penalty incurred will be held against the sponsorship application. 

Now is the time to be doing something about this! The new PBS is due to go live in Autumn 2008 by which point employers wanting to recruit non EEA nationals will need to be registered as Sponsors. The registration process takes approximately 6 to 10 weeks and therefore employers should be preparing to register now. 

In order to prepare for registration, HR teams should be reviewing all their files now to ensure that all current employees have the right to work in the UK and there are documents in place to evidence this. Also, HR teams should be checking that they have updated the UK Border Agency about changes to current work permit holder’s employment and if a work permit holder has left, checking that they have notified the UK Border Agency.

So be warned. If you fail to get your house in order and check your files prior to making a sponsorship application, you will opening doors to compliance officers who may issue on the spot fines which will be detrimental to your employer’s sponsorship application and ability to recruit non EEA nationals come Autumn 2008.