Immigration law changes make life tougher for employers
Since July 2010, the Government has stepped up its efforts to ensure that UK nationals are not being overlooked for employment in favour of overseas nationals. EU nationals have freedom of movement and therefore free access to any employment in the UK.
The number of EU nationals that have freedom of movement will increase from 1 May 2011, as the Worker Registration Scheme will close. The scheme governs nationals of the 'A8' states that joined the EU on 1 May 2004 (Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Slovakia and Slovenia). Under EU legislation, the UK cannot impose restrictions beyond 1 May 2011. Restrictions on Bulgarian and Romanian nationals will remain.
The most controversial step is the introduction of a cap on the number of non-EEA nationals who can enter the UK each year. This is a significant change as previously the Government has let the market determine the numbers of workers needed. The cap will primarily affect overseas residents, as most non-EEA nationals that are already in the UK will be exempt from that limitation. The process for issuing work permission under the cap is weighted in favour of shortage occupation positions, highly qualified individuals and high earners.
The cap will not apply to inter-company transfers; however the period of time an employee can stay in the UK under this route is being restricted severely and employees earning less than £40,000 (including allowances) will not be allowed to stay for more than 12 months. The Government is also restricting the type of work that can be undertaken by restricting permission only to those jobs that are deemed to be at university graduate level. Furthermore, inter-company transfer employees are not entitled to apply to settle in the UK.
There are changes to encourage investors and entrepreneurs to do business in the UK, which have two key features. First, there is an increased allowance of absences from the UK, which means that business individuals do not need to be based in the UK for so long in order to qualify for settlement. The second key change is the potential to qualify for settlement after two or three years instead of five years if specific targets on investment, business turnover and job creation are met.
The Government has also been reviewing the status of students and their access to the UK. A series of changes has limited the types of study that can be undertaken, as well as licensing the provider that can offer courses. In line with the controls imposed on employers, education providers are now responsible for ensuring their students remain compliant with the immigration rules and are obliged to report default, which includes non-attendance. The number of hours students can work have been reduced for non-degree courses. From April 2012, students will no longer be able to apply for a visa that allows them to work in the UK for two years after completing their studies. There are also additional restrictions limiting the dependents that can accompany students. These changes increase the questions to be addressed by employers that employ students.
Finally, the Government has for the past few years imposed significant obligations on employers and employees alike in relation to the administration of the process for securing working permission. As there has been criticism that the Home Office has failed to act in cases where approved employment ends or there is other default, we can expect measures and resources to be directed in this area.
Employers are obliged to ensure that employees have the ability to work in the UK. Depending on when the employment commenced, the employer has additional ongoing obligations. For employees who started after 29 February 2008, the checks may need to be made at least annually.
As the Government has taken significant steps to reduce the ability of non-EEA nationals to commence work, their next target will be to focus on employers who are not complying with their obligations. This is making life much tougher on employers who have to keep up-to-date with the changes.
Gavin Jones is head of the immigration team at law firm Blake Lapthorn