Employers risk fines and bans as migration system kicks in

The rules for hiring skilled workers and temps from overseas will change dramatically this autumn, but very few organisations have applied to become sponsors to hire such staff legally. Legal experts tell Personnel Today what employers should do and why.

Earlier this month, a budget airline announced it would cut all ties with the recruitment agency that supplied it with an illegal worker from Singapore. City-based Flybe blamed CBSbutler for failing to spot that aircraft engineer Ganesh Rajoo, who has now been deported, had a fake passport.

Terror threat

The announcement came in the wake of a report commissioned by the Conservative Party, which warned that the UK could be vulnerable to terrorist attacks for another three decades, and that Britain’s borders were poorly protected.

Under the UK’s new points-based immigration system, launched on 29 February, organisations are responsible for tracking migrant workers they employ throughout their stay in the UK. This includes monitoring how long the worker’s visa is valid for, whether they turn up for work, and if they change address. Previously, such tracking was carried out by the government.

While Rajoo was employed directly by CBSbutler, making it the agency’s responsibility to carry out appropriate background checks, legal experts have warned that both agencies and the organisations they supply should carry out checks and monitor employees to be sure of avoiding any penalties.

Laura Mitchell, associate employment solicitor at Clarion Solicitors, told Personnel Today: “Depending on who’s controlling the employee, such as what uniform they wear or when they turn up to work, the employee could actually be employed by the firm rather than the agency. We’re advising the firms to also carry out checks, so they don’t get caught out.”

Regular checks

To escape liability for a civil penalty – which could be as much as a £10,000 fine for each illegal worker caught – employers must check specific documents when hiring new staff, and make subsequent checks at 12-month intervals for workers who have limited leave to enter or remain in the UK.

The severity of the fine depends on the nature of any checks undertaken. Employers that knowingly hire illegal immigrants face jail terms and unlimited fines.

Prosecutions

Since the rules came in this year, 352 firms have been prosecuted for employing people without permission to work. This is 20 times the number prosecuted in the whole of 2007.

Employers have been slow to apply to become sponsors, legally able to hire migrant workers under tiers two and five of the system. But when those tiers come into effect this autumn, employers will have to act as sponsors for foreign employees, including skilled workers and temps, taking responsibility for ensuring they comply with the rules. If sponsors do not act responsibly, they may be downgraded or removed from the public sponsorship register.

Some lawyers predict the rules will not come in until November, but despite this, Sarah Buttler, partner at law firm Sarah Buttler Associates, warned employers to start applying now, or face huge bottlenecks and gaps in employment while waiting for their sponsorship status.

“Employers must be able to demonstrate to the UK Border Agency that they have control of their migrant workers, so it’s important for employers to prepare now for the new system,” she said. “They will have to apply at some point, so they may as well do it now.”

Checklist: Preparing to become a sponsor

  • Familiarise yourself with the points-based system introduced in February 2008.

  • Set up systems for managing and tracking migrant workers.

  • Ensure managers know what documents to check when employing a migrant worker, and that they need to review checks every 12 months.

  • Set up a clear chain of command, outlining who in your organisation is responsible for hiring migrants and what their responsibilities are.

  • The UK Border Agency may wish to meet some staff on work permits, so make sure they are where they say they will be.

  • Check the Border Agency website or call the employer helpline (0845 010 6677) for more information.

Source: Sarah Buttler Associates.