New Measures to Tackle Illegal Working
The Immigration, Asylum and Nationality (IAN) Act 2006 received Royal Assent on 30 March 2006. This will replace and repeal the Asylum and Immigration Act 1996. The Government intends to introduce the provisions within the Act over a period of time, with full implementation not expected until 2008.
As well as introducing new measures giving the Government enhanced powers to tackle illegal working and to strengthen the UK’s borders, the IAN Act imposes new civil penalties of up to £2,000 per employee on those who employ a person aged 16 or over who is either subject to a condition preventing them from accepting the employment or who does not have current leave to enter or remain in the UK. It also provides for a new criminal offence of employing a person knowing that they are not legally entitled to work in the UK, with a maximum penalty of two years' imprisonment and/or an unlimited fine.
Separately from the IAN Act, in February 2005 the Home Office published a five-year strategy for asylum and immigration entitled ‘Controlling our borders: making immigration work for Britain’. This announced the intention to introduce a new points system for managing the flow of people applying to work or study in the UK. Following consultation, the scheme was again announced in March 2006, together with a ‘Command Paper’ entitled ‘A Points-Based System: Making Migration Work for Britain’.
The scheme will consist of a five tier framework and applicants will be directed to the category that is most appropriate for them. These are as follows:
- highly skilled individuals to contribute to growth and productivity;
- skilled workers with a job offer to fill gaps in the UK labour force;
- limited numbers of low skilled workers needed to fill specific temporary labour shortages;
- students; and
- youth mobility and temporary workers. These will be people allowed to work in the UK for a limited period of time to satisfy primarily non-economic objectives.
For each tier, applicants will need sufficient points to obtain entry or leave to remain in the UK. Points will be awarded for ‘attributes’, which predict a migrant’s success in the labour market, and for ‘control factors’, which relate to whether someone is likely to comply with the conditions of their leave. All but the most highly skilled immigrants will require a sponsor (normally their employer) who will be responsible for ensuring that a migrant worker complies with the rules of their entry to the UK and returns home at the end of their stay. The Command Paper can be found at http://www.homeoffice.gov.uk/documents/command-points-based-migration?view=Binary
Further consultation on these proposals will take place with interested parties. The points-based system will then be phased in by tier. As the IT requirement will be significant, this is likely to take some time.
For employers, an important issue is how to avoid committing a criminal offence under the asylum and immigration laws whilst at the same time ensuring that recruitment practices do not discriminate against individuals and so fall foul of the Race Relations Act 1976.
Any person who believes they have been discriminated against on grounds of race, colour, ethnic or national origin or nationality has the right to take their case to an employment tribunal. If their complaint is upheld, there is no upper limit to the amount of compensation the employer can be ordered to pay.
The current Home Office guidance on preventing illegal working makes it clear which original documents employers are required to see and contains advice on how to avoid discrimination when preventing illegal working. This is available on the Immigration and Nationality Directorate website at http://www.ind.homeoffice.gov.uk
. Revised guidance will be issued to accompany the new Act.
The best way to make sure that you do not discriminate is to treat all job applicants in exactly the same way at each stage of the recruitment process. Have clear, written recruitment procedures and check regularly that they are being followed. An employer can be held responsible for discriminatory action by employees if he or she does not take steps to prevent it happening.
Changes to Immigration Rules for Indefinite Leave to Remain Applications
On 3 April 2006, important changes were made to the existing immigration rules relating to applications for permission to remain in the UK. The qualifying period for settlement (the amount of continuous time that has to be spent lawfully in the UK in order to qualify for Indefinite Leave to Remain) has been increased from four years to five years for individuals who are in the UK within an employment or business category or under the UK Ancestry provisions. In addition, the maximum initial period of leave which can be issued in respect of most employment or business categories (except for work permit holders, retired persons of independent means, domestic workers and self-employed lawyers) has been increased to two years. Subsequent applications to extend this initial period may be issued for a further period of up to three years.
Freedom of Movement of Citizens of the European Economic Area
Asylum and immigration rules which can make it a criminal offence to employ someone not entitled to work in the UK do not apply to citizens of countries in the European Economic Area (EEA).
On 30 April 2006, The Immigration (European Economic Area) Regulations came into force. These implement EU Directive 2004/38. Measures include:
- the introduction of a permanent right of residence for EEA nationals and their family members which generally applies after a continuous residence period of 5 years;
- the introduction of an initial right of residence period not exceeding 3 months which is no longer conditional on the EEA national being a worker or self-employed; and
- the inclusion of civil partners as family members for the purpose of the Regulations.
The Worker Registration Scheme
Ten states joined the EU on 1 May 2004. These were Cyprus, the Czech Republic, Hungary, Latvia, Estonia, Lithuania, Malta, Poland, Slovakia and Slovenia. Under transitional arrangements introduced on 1 May 2004, the new Accession State Worker Registration Scheme was introduced for new workers from these countries, excluding Malta and Cyprus, planning to work in the UK for more than one month. The scheme restricts the right of those workers to certain benefits until they have been working in the UK for a continuous period of 12 months.
Workers from these eight new member states are generally required to apply to the Home Office for a registration certificate, authorising them to work for that employer, within one month of starting work. Applications for registration are the responsibility of the individual worker and a registration fee of £70 is payable. Employers should, however, ensure that the individual is provided with a letter on company paper confirming the date on which he or she started working, as the worker will need this when applying for registration. The employer should keep a copy of the worker’s completed application form, as evidence that the request for registration has been made within one month of that person starting work for them, and retain a copy of the valid Worker Registration Certificate.
It is a criminal offence, with a maximum fine of £5,000, to continue to employ a worker from one of these eight countries without the necessary registration certificate.
In April 2006, the Government confirmed that it would continue to operate the Worker Registration Scheme after 1 May 2006 in order to monitor the numbers of nationals from these member states coming to work in the UK and their impact on the labour market.