Immigration Law Guidance

Published on 1st December 2008

The new points based immigration system

/hr/images Welcome to Connection’s special Immigration Law feature! With the introduction of the government’s new point based immigration system, this feature focuses on who the new rules apply to and how they will affect your business.

How it all works

The new immigration system consists of a five-tier framework, which is set out below. The purpose of the framework is to direct migrant applicants to the category that applies to them. All migrants who wish to work or study in the UK must apply using this system to gain clearance beforehand.

The tiers are as follows:

Tier 1: Highly skilled individuals
Tier 2: Skilled workers with a job offer to fill gaps in the UK labour force
Tier 3: Limited number of low-skilled workers to fill temporary labour shortages
Tier 4: Students
Tier 5: Youth mobility and temporary workers

Those who are applying under this system will be awarded points on specific criteria, including age, qualifications, potential earnings and English skills.

How this will affect you

Most companies are likely to pay more interest to Tier 2, as any worker from outside the EEA who is offered a skilled role, which requires a qualification of NVQ level 3 or higher, will have to apply under Tier 2 so that they are able to gain clearance.

That's not all! Those who are seeking to employ migrant workers under Tier 2 are now are now also required to register as a sponsor with the UK Border Agency. This rule only came into effect last month.

Applying for sponsorship

To gain sponsorship, you will need to submit an online application to the UK Border Agency. You will then be assigned a compliance officer who will visit your company to find out if you qualify to be a registered sponsor.

To be a sponsor, you must meet the following criteria:

be a UK based employer
have individuals allocated to be responsible for immigration and sponsorship matters
have not previously fallen foul of immigration rules and
be able to comply with the sponsorship duties.

At the moment, applications are taking 4-6 weeks, however we advise that you apply as soon as possible, as this time frame may change.

Your Sponsorship Duties

When you become a sponsor you must agree to contact the UK Border Agency within 10 working days when:

a migrant employee fails to turn up for the 1st day of work
a migrant employee is absent without authorisation for 10 days or more
the sponsor stops sponsoring the individual.

Failure to comply can result in the loss of their sponsorship.

Recruiting

Once you have your sponsorship, you are more or less ready to go. However, before you do, there are a few extra points that you must be aware of. Any job that is offered to a migrant worker must coincide with the resident labour market test, that is, unless it’s a job listed on the National Shortage Occupation List

The resident labour market test requires that:

the job vacancy be advertised to settled workers
if the salary for the job is £40,000 or under, you must advertise it for a minimum of two weeks
if the vacancy is over £40,000, you must advertise it for a minimum of one week
the job must also be advertised in accordance with the relevant code of practice specific to the type of sector or job (the codes of practice are due to be placed on the BIA website soon) or where there is no code of practice, at Jobcentre Plus.

Once you have covered the resident labour test, or once the job has been recognised on the labour shortage list, you are free to issue the migrant a certificate. Another crucial point to remember is that the certificate can only be issued once. You cannot pass the certificate onto another migrant if you find that they are unsuccessful, as it will become void. We would therefore suggest completing a self-assessment of the employee before issuing the certificate, as this will avoid wasting time and effort.

Employees who are already on work permits

Employees who are already working a work permit, are able to continue to do so, but only until it expires. It is worth noting that once the permit has expired they cannot apply for an extend, but instead will have to apply afresh under the new points based system.

Failure to Comply with the Points-Based System

Those who fail to comply with the points based system could lead to a breach of the Immigration, Asylum and Nationality Act 2006. The consequence is a term of imprisonment not exceeding 2 years and/or a fine. To avoid this, we suggest that you undertake the necessary document checks as laid out on the BIA website for all employees.

Ceridian can help

If all this sounds a little daunting, don't worry - you can get help. We have designed a service that can give you the support and the processes you need to stay within the law and avoid the penalties laid down in the regulations. Details of our service, as well as an overview of what you need to do, can be found in our factsheet:

Migrant Workers Factsheet

Should you require any information regarding this service, contact our team on 0800 0482 737.

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