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Tijen Ahmet

SA Law

Immigration Solicitor

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The new Immigration Bill – guidance for employers

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The government’s ongoing aim and intention to reduce net migration from hundreds of thousands to tens of thousands a year continues, with the announcement of the new Immigration Bill. In practice the Bill will first require Royal Assent and we are therefore unlikely to observe the impact until after Spring 2014.

On 10 October 2013 the Home Office introduced a new Immigration Bill to Parliament that is directly aimed at tackling illegal migration, however the Immigration Bill is undergoing a second reading debate following Labour’s suggestion that the exploitation of illegal workers has not been plainly addressed. Either way, the proposals in practice will inevitably impact UK businesses and their sponsored migrant employees.

The government plans detailed in the Immigration Bill make it more difficult for illegal migrants to live in the UK, simplifies identifying illegal migrants and makes it easier to remove and deport illegal migrants from the UK.

Summary of proposals

To summarise some of government’s plans, they intend to:

  • make temporary residents, with a limited right of stay in the UK, contribute to costs for NHS care;
  • check driving licence applicants' immigration status before issuing a licence, and revoking licences for those who have overstayed their visa;
  • prohibit banks from opening accounts for illegal migrants by checking against a database of known immigration offenders before opening bank accounts;
  • make private landlords check the immigration status of their tenants to restrict access to private rented accommodation to illegal migrants;
  • reduce the number of removal/deportation decisions that can be appealed and restrict their current bail rights;
  • clamp down on people who try to gain an immigration advantage by entering into "sham" marriages or civil partnerships;

How will Employers be affected.

The outcome of this year’s government consultation to strengthen and simplify the civil penalty scheme to prevent illegal working will be included in the new Immigration Bill and is more targeted towards businesses, and employers’ rights and obligations when sponsoring migrant workers.

I have outlined some of these important changes that may affect your business:

  • The maximum civil penalty for employing illegal workers is to be increased from £10,000 to £20,000 per illegal worker;
  • The starting point for the calculation of a first civil penalty for employers will be at £15,000;
  • The range of acceptable documents for checking the right to work of a migrant worker is to be reduced;
  • Annual follow-up checks on employees with time-limited permission to work in the UK is to be removed and replaced with a check at the point of expiry;
  • A warning letter is no longer to be issued for a first time breach;
  • The grace period for document checks to be made on employees acquired as a result of a TUPE transfer is to be extended from 28 days to 60 days;
  • There will be a greater reliance on the use of Biometric Residence Permits (credit card like residence permit that holds the name, date, place of birth, biometric information, and shows immi­gration status and entitlements whist in the UK for non-EEA nationals)

Protect your business

HR professionals should be aware of the consequences of employing illegal workers and work directly on their internal processes to meet their company’s sponsorship duties. This will ensure that your company not only has the correct systems in place but also continues to carry out the correct right to work checks to protect them from the civil penalties being imposed. From February 2008 up until the end of 2012, 8,100 civil penalties were issued to employers employing illegal workers, and the Home Office immigration law enforcement division will continue to inflict these penalties on those exploiting migrant workers. However to mitigate, there is a statutory excuse when the right procedures are implemented by you and your company.

In preparation for these changes, education is key. Your company should keep informed of the changes and take reasonable steps to ensure that the correct right to work checks are made, whilst being conscious of any restrictions on a foreign employee’s type of work.  It is also worth taking advantage of the UK Border Agency registered services for employers such as the ‘Right To Work Check’ and ‘Employer Checking Service’. Although these services are developing, they have been made available to assist legitimate businesses to comply with right to work checks whilst reducing administrative costs.

Some larger companies may undergo external immigration audits from their legal representatives which can potentially operate as a good foundation to ensure continued compliance, and which are less costly than the penalties that could potentially be imposed. Immigration compliance is not merely an HR issue as may have been the misguided view in the past. Compliance should be understood by the senior management but also taken seriously, particularly in the upcoming months leading to the Immigration Bill becoming law.

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Tijen Ahmet

Immigration Solicitor

Read more from Tijen Ahmet
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