mmigration law will change radically in the next few years. Caron Pope from Pay Magazine outlines the key changes.

Immigration law can be notoriously complex, with over 80 different routes by which a non-European national can currently come to the for work, study or training. Employing a foreign national can be a potential minefield for HR and Payroll specialists and employing someone without permission to work can have severe repercussions for employers.

Under current legislation, an unlimited fine can be levied for each illegal employee. Although, in practice, there have been very few employer prosecutions to date, the government is placing an increased emphasis on employers taking responsibility for compliance, with stricter penalties to be introduced, including the possibility of a maximum two-year custodial sentence. It is therefore essential that HR and payroll professionals are aware of who can work in the , whether there are restrictions on the type of work they can do and any limitations on the amount of time they can work.

In February 2005 the government announced its intention to overhaul immigration law as part of a five year plan and immigration remains high on the political agenda. While some changes have already been introduced, immigration law will change radically in the next two to three years. The myriad of different immigration categories will be replaced in stages by a new points based system which is intended to be more transparent, efficient and easier to manage.

This article highlights some of the key changes already introduced, which are of greatest relevance to the business community, as well as highlighting changes in the pipeline. As significant changes are being introduced with little or no warning, even recent experience with the immigration system cannot be relied on and anyone involved in HR and related areas should be aware of the changes and their impact on overseas nationals taking employment in the UK.

Highly skilled

The Highly Skilled Migrant Programme (HSMP) has proved to be an extremely useful route of entry for overseas nationals over the past five years. An HSM is permitted to take employment or self-employment in the and is not tied to a specific employer for a particular role, as with a work permit. Employers sometimes find it easier to assist a candidate with an HSMP application rather than applying for a work permit, particularly if it has not advertised the role to show that there are no suitable applicants from the labour force resident in Euope.

The HSMP is assessed on a points basis, with candidates having to provide original supporting documents. The assessment criteria were amended in November 2006 and, with no prior warning, the scheme was suspended for four weeks to allow applications already filed to be assessed under the old criteria – a good example of the way in which changes are being brought into force.

The main changes for employers to be aware of include:

Provided an employer is satisfied that an overseas national has permission endorsed in his passport to be in the UK as an HSM, he can be employed immediately with no further formalities on the immigration front.

However, employers must keep note of when the permission expires and be satisfied that the HSM has obtained an extension at the end of the initial two years’ permission or applied for settlement at the five year point to ensure that they can continue to legally employ them in the However, as the basis on which the initial HSMP approval was granted has now changed, there is a possibility hat some HSMs will no longer be able to qualify for an extension – for example, if they have not earned enough or their English is not at the necessary level. Obtaining an extension can no longer be viewed as a mere formality.

Working holidaymakers

The working holidaymaker category permits Commonwealth citizens aged between 17 and 30 to take extended holidays in the Prior to February 2005, a working holiday maker was free to work for the whole of the two year period of the visa. However, they are now restricted to working for 12 months in total.

Therefore HR and payroll specialists must ensure, not only that the working holidaymaker has valid leave to remain, but that they take all necessary steps to verify how long the working holidaymaker has already worked in the UK. If, for example, they have already worked for six months for another employer in the , only a further six months employment is permitted. Working beyond this period will cause the employee and employer alike to be in breach of the immigration rules.

Students and graduates

While foreign students in the are free to take any kind of employment without a work permit, they cannot work for more than 20 hours per week in term time.

Apart from students undertaking a “sandwich course”, full-time employment is permitted only during the academic holidays or following graduation until the expiry of their student visa.

Employers will be free to employ MSc and PhD graduates for one year following graduation without obtaining a work permit, if they started their course in or after May 2006. Provided the relevant checks are made, this may provide a useful route for employers to employ new graduates.

Leave to remain

The qualifying period for indefinite leave to remain (colloquially known as permanent residence) was increased in April 2006 from four to five years. From April 2007, all applicants are required to pass a compulsory English language test. Once an overseas national has this status, an employer can take them on in any role.

Looking forward

The new points system is designed to encourage migration by those who have the most to contribute to the , make the system more transparent and easier to administer, increase compliance and reduce the scope for abuse.

There will essentially be five tiers:

In addition to the overhaul of the scheme, changes will be made to the way in which applications are processed. Consideration of all applications will be outsourced from Work Permits UK to British diplomatic posts overseas. How this will work in practice remains to be seen and very little detailed information has been produced.

The government is committed to move towards a system of closer policing and monitoring of overseas workers with the onus shifting to employers to ensure compliance. The Home Office paper A Strategy to Ensure and Enforce Compliance with our Immigration Law, published on 7 March 2007, provides details of how the Home Office proposes to clamp down on illegal workers. This will include an identity checking service of prospective employees for employers; fast tracking the implementation of civil penalties for employers of illegal migrant workers including higher penalties for re-offending employers; applying to the courts to disbar company directors convicted of an offence in connection with the management of a company, such as knowingly employing illegal workers; and the creation of a network of compliance teams to keep employers complying with the new system.

While ignorance of the law has never been a defence, the days of the authorities effectively turning a blind eye to non-compliant employers and foreign workers will be a thing of the past. The message to all HR and payroll specialists must be to ignore immigration law at their peril, to check the status of all employees on their payroll and ensure that they remain in compliance to avoid possible prosecution.