UK immigration rules have "achieved a degree of complexity which even the Byzantine Emperors would have envied". When this is the view of one of the country’s top judges, Lord Justice Jackson, it's clear that HR directors operating in a global market for talent face great challenges in meeting their firms’ talent needs while adhering to the UK’s immigration rules and policies.
1. Right to work checks
Employers are required to undertake right to work checks on all employees. In order to establish a statutory excuse against employing an illegal worker, these right to work checks must be undertaken before the employee commences work, and a follow up check must be undertaken for employees with time limited immigration permission.
The Home Office has recently changed its guidance; now simply dating a copy document will not, in itself, be sufficient proof that the check was undertaken on the date given. Instead, you have to use specific wording on the copy documents declaring the date of the check, or to hold a separate secure record of the fact.
Many employers fail to undertake the checks at the correct time, exposing themselves to potential liability. The penalties for employing an illegal worker have recently increased. It is a criminal offence if an employer has ‘reasonable cause to believe’ someone is an illegal worker. The maximum sentence has recently increased from two to five years. Additionally, the civil penalty for employing an illegal worker is now up to £20,000 per worker.
It is important that someone in your team is responsible for regularly checking the Home Office’s right to work guidance for the latest requirements, and ensuring adequate systems are in place so that checks are undertaken at the correct time.
2. Tier 2 record keeping
When recruiting employees from outside the European Economic Area (EEA) you will usually need to sponsor the migrant under Tier 2 of the UK’s Points Based System. This requires you to obtain a sponsor licence from the Home Office. One of your key duties as a sponsor is to maintain records for the migrant worker, including evidence of any advertising process undertaken and qualifications to evidence that the migrant has appropriate credentials to undertake the role in question.
Most sponsors do not receive a pre-licence compliance visit from the Home Office, but all sponsors will receive a post-licence visit at some point during the course of a licence (which initially lasts for four years). At these compliance visits, the Home Office will audit some or all migrant personnel files and also assess whether you have complied with all relevant reporting duties (see below).
Many sponsors fail to keep adequate records, which can lead to downgrading, suspension or even revocation of the sponsor licence, depending on the severity of the breach. It is strongly advisable to put appropriate processes in place for collecting the required documents as soon as a migrant worker begins a period of sponsorship, and for updating them as necessary. For example, a history of the migrant’s contact details must be maintained, not just their current details. Documents can be stored in hard copy or electronically, provided they can be accessed upon request by the Home Office. If you have kept up to speed with and complied with the record keeping duties, you should be well prepared for a Home Office visit.
3. Tier 2 reporting
As a sponsor, the Home Office requires you to report various changes to the migrant’s and the sponsor’s circumstances. Most changes have to be reported within 10 working days, and this includes any significant changes to the migrant’s working circumstances or the early termination of their sponsorship.
Unfortunately, many sponsors are not aware of the reporting obligations. Perhaps understandable, given the degree of information overload – one of the Home Office’s guidance notes for sponsors alone runs to 194 pages.
In a recent Court of Appeal case, one of the key reasons why a sponsor’s revoked licence was not reinstated was because it had failed to report a change in the location where migrants would be working. It is critical that the Home Office knows the location of migrant workers. Having strong HR systems and practices in place will ensure you are always aware of and able to immediately report on any such changes.
At a corporate level, you also need to be particularly alive to the fact that any changes in circumstances may need to be reported, and potentially a new licence obtained – for example where there has been a change in majority ownership.
4. Limits on business visitors
Non visa nationals (for example citizens of the US, Canada and Australia) can travel to the UK as a visitor without obtaining a visa. On each entry to the UK, a visitor is usually provided with leave to enter for six months, however they must satisfy the Immigration Officer on each entry to the UK that they meet the requirements of the Immigration Rules for visitors. Visitors may carry out limited business activities, such as attending meetings and interviews, and negotiating and signing deals and contracts. However, they cannot undertake productive work in the UK, and are not permitted to fill a role. Factors that may suggest business visitors are going beyond what is permitted include them having UK business cards or a UK signature on their emails.
Sanctions for visitors found breaching the Immigration Rules can include a lengthy ban on entering the UK, and for firms the potential penalties for illegal working detailed above can apply. Keeping line managers and relevant employees fully informed of the limits on what business visitors can do will help you minimise liability.
5. Keeping up to date
Following the UK’s vote to leave the European Union on 23 June 2016, the issue of UK immigration has never been more incendiary.
We expect to see major changes to UK immigration over the next few years, not least to deal with the practical aspects of Brexit and the approximately three million EEA migrants currently living in the UK. With the Home Office regularly changing rules and policies with little or no notice, it is important for you and your teams to seek ways to keep up to date, for example signing up for Home Office or immigration law firm e-shots, and opting to receive regular in house training from immigration experts.
Jessica is a senior associate solicitor at UK and US immigration specialists Laura Devine Attorneys in New York, an associate firm of London-based Laura Devine Solicitors.