Sponsors, paranoia and unfair dismissal

Source: Free Movement

What is the psychological effect upon employers of the increasing stringency of their obligations under the Points Based System?

The civil penalties under section 15 of the Immigration and Nationality Act 2006, which, in February of 2008, created the possibility of a £10,000 penalty to be paid by an employer for each person he or she is found to employ who does not have permission to be in the UK, or whose permission does not entitle them to work. Employers are liable for this penalty whether or not they knew that their employee didn’t have the necessary leave to enter or remain in the UK or permission to work.

If they did have such knowledge employers may be prosecuted under section 21 of the same Act – and could be sent to prison for up to 6 months.

But the dangers facing employers don’t end there. Unless they keep up with their reporting obligations with regard to employees from outside the European Economic Area (the “EEA”) as Tier 2 Sponsors – the UKBA could remove their Tier 2 Sponsor licence – which could be nothing short of catastrophic for those employers dependent upon skilled labour from outside the EEA.

So it is not mere hyperbole to say that the joint effect of the regimes imposed on sponsors is a kind of enhanced vigilance bordering on paranoia.

The recent Employment Appeal Tribunal judgment in H Okuoimose v City Facilities Management (UK) Ltd UKEAT/0192/11/DA demonstrates how employers’ concerns as to the lawfulness of a person’s employment can lead to injustice.

The Claimant, a Nigerian national with a Spanish husband, was working for the Respondent at an ASDA store when, on 8 July 2010, the Respondent suspended her without pay and demanded evidence of her permission to work in the UK. The Respondent did this because the Claimant’s passport had a UKBA endorsement indicating that she had been “given” the right to reside in the UK as the spouse of an EEA national exercising Treaty rights in the UK until 8 July 2010. The Claimant told the Respondent that she’d applied to the UKBA for renewal of her endorsement. The Respondent then contacted the UKBA themselves.

The UKBA said that they had checked their records and could not confirm the Claimant’s entitlement to work and, furthermore, unless the Claimant did provide the Respondent with evidence of her entitlement to work:

“[she would] not have a statutory excuse against liability for payment of a civil penalty for employing an illegal migrant worker”.

The Respondent sacked the Claimant accordingly. Not long after the UKBA wrote to the Respondent, it provided a further letter to the Claimant, in which it said that until her application had been decided she would:

“be treated for immigration purposes as a family member of a legally resident EEA national and, as such, [she was] free to live and work in the UK”.

The Respondent therefore reinstated her to her job.

The Claimant’s case in the Employment Tribunal, and on which she succeeded after her first instance appeal was dismissed, was that she had been wrongly suspended without pay and that she had always been entitled to work in the UK as the family member of a EEA national. It did not matter, as His Honour Judge McMullen QC accepted, that she did not have the necessary residence documents. Those documents did not give her the right to work – they were simply evidence of the existence of that right, which came into being because the Claimant was married to an EEA national. This was clear from Article 25 of the Citizens’ Directive:

“Possession of a registration certificate as referred to in Article 8, of a document certifying permanent residence, of a certificate attesting submission of an application for a family member residence card, of a residence card or of a permanent residence card, may under no circumstances be made a precondition for the exercise of a right or the completion of an administrative formality, as entitlement to rights may be attested by any other means of proof.”

The Claimant was accordingly awarded her pay for the period in which her employment had been suspended.

At first instance the judge had found that the Respondent had been entitled to act as it had done because of its concerns about being penalised under section 15 of the Immigration and Nationality Act 2006. That judgment was however overturned because it was clear that that section of that Act had no application to the Claimant.

What is interesting about all this is the role of the employer as the delegated enforcer of immigration control. A sense of paranoia will inevitably lead people entrusted with such a role into a trigger happy response to a concern about their employees’ entitlement to work. This is a happy example of someone who was able to obtain redress against the effect of such a disposition on her.

Heaven knows how many examples there are to the contrary, but perhaps it is naive to imagine that they are anything other than what was and is intended.

Kathryn Bradbury

Gherson Immigration Lawyers

www.gherson.com

Watch out old work permit holders…

Source: Free Movement

Back on 6 April 2011 the UK Border Agency made a change to the settlement rules for work permit holders who had entered the UK before the Points Based System was introduced. The change required a work permit holder to be paid a certain salary in order to qualify for settlement, or Indefinite Leave to Remain. The salary required is that specified in the myriad Codes of Practice for Tier 2 of the Points Based System.

The problem since faced by many work permit holder seeking settlement after five years of living and working in the UK is that their work permit was approved for one salary, which is what they have as a consequence been paid by their employer, but suddenly, with no individual warning, that salary level is no longer sufficient and the work permit holder neither qualifies for settlement nor for an extension under Tier 2.

An announcement recently went up on the UK Border Agency website that as of 31 October 2011, work permit holders will not only need to be paid the Code of Practice salary but will need to submit certain specified documents in order to demonstrate this. Previously certification by the employer was sufficient, but no longer.

The 6 April change was clearly an unfair one in the moral sense – the rules of the game were changed without notification. Foreign workers have a potentially difficult relationship with their employer in any event, and negotiating a rise in salary might well have been difficult even had they known one was needed. However, in immigration law it is very difficult to succeed on the basis of a legitimate expectation or a fairness argument. The courts have repeatedly held that there is no legitimate expectation that the Immigration Rules will remain the same (see Odelola for example). Cases that have succeeded, like the HSMP and BAPIO challenges, were based on specific assurances that the rules would remain the same, assurances that are not normally given. I have myself struggled to come up with a robust legal solution for those facing this problem. Article 8 ECHR is the best I can offer, but I would be interested to hear if anyone has done better.

Those work permit holders coming to the end of their five years and considering applying for settlement would be well advised to make sure they have checked they are paid in accordance with the relevant Code of Practice.

Points based system and migration cap to affect scientific research

Scientific institutions are concerned the combination of the points based system and the proposed immigration cap will reduce the number of talented researchers coming to the UK.

Read more

Level of an Annual Limit on Economic Migration to the UK

Date: 26^th August 2010
Time: 11am – 1pm
Venue:  East Midlands Councils, Phoenix House, Nottingham Road, Melton Mowbray, LE13 0UL

On 20 May 2010 the Coalition Government said “We will introduce an annual limit on the number of non-EU economic migrants admitted into the UK to live and work. We will consider jointly the mechanism for implementing the limit.”

On 28 June the Government launched a consultation on how an annual limit for Tiers 1 (highly skilled migrants) and 2 (skilled migrants) of the Points Based System for migration from outside the EEA will work in practice, and the mechanism through which it should be achieved.

At the same time the Government commissioned the MAC to consult and provide advice on the level at which the first annual limit should be set (2011/12). In doing so the Government asked the Committee to:

• take into account their overall objective of reducing net migration to the tens of thousands by the end of the Parliament;
• balance economic, social and public service impacts of migration; and
• report by the end of September.

The MAC issued a consultation on 30 June which can be accessed here:

http://www.ukba.homeoffice.gov.uk/sitecontent/documents/aboutus/workingwithus/mac/mac-consultation-annual-limit/

The deadline for the consultation is 7 September 2010.

As you may know the Migration Advisory Committee (MAC) are currently consulting on the level that the first year limit on non-EEA immigrants coming to the UK for work should be set at. In doing so the Committee have been asked to take into account economic, public service and social impacts. We would very much like to come to the East Midlands and talk through our consultation with relevant representatives and hear some initial reactions.

Our interests are quite broad around economic, public service and social impacts and are not limited to, but include the following:

Education

• What role do migrants (particularly Tier 1 and Tier 2 migrants and their dependants) play in consuming and providing these services? To what extent can you measure and balance these impacts?
• Do corporate partners have any information on T1/T2 migrants (+ dependants) being employed in the education sector? It would be particularly helpful to get this information from several regions to enable us to bring out any regional variation in this impact in our report.
• How much do local authorities have to spend to accommodate EAL students in their classrooms? What effect, if any, is this having on the education of other students? (we appreciate some EAL students will not be migrants and some migrants will not be EAL students).

Healthcare and social services

• What role do migrants (particularly Tier 1 and Tier 2 migrants and their dependants) play in consuming and providing these services? To what extent can you measure and balance these impacts?
• Again, can partners provide us with evidence (at regional level if possible) of T1/T2 migrants and dependants being employed in the health and social service sectors and their importance to these sectors?
• Do employers offer private healthcare to migrants (and their families) as part of their overall benefits package?
• Can health workers comment on whether non-EEA migrants (pref. T1/T2 + dependants) have particular medical needs (illnesses (hereditary or otherwise) or increased likelihood to abuse alcohol/drugs/etc that could place increased burden on health services?)

Housing

• On housing we are interested in the extent to which migrants deny current residents access to social housing, and the impact of migration in influencing housing availability, rent levels, and house prices.

Crime

• On crime, we want to know the extent to which migrants commit crime (relative to the resident population), and what types of crime, and how much police and prison resource they “consume” as criminals.

Social cohesion

Not an easy area to consult on but we would be interested to hear views on:

• Are there any regional public opinion polls on migration that we could use?
• Can employers comment on the rate of change of the proportion of their workforce that are migrants? Do migrants integrate well into the workforce/local community? Have there been any tensions/disputes among employees?

Economic

• Other than the areas mentioned above are there other economic impacts that should be taken into account (e.g. harder to recruit non-EU workers into hard to fill jobs such as chefs, engineering etc…).

In a nutshell, in recommending a first annual limit for non-EU immigration, we need to understand what impact this may have on your region.

Please indicate your attendance at this event by emailing kirsty.lowe@emcouncils.gov.uk

If you have any questions please do not hesitate to contact me.

Kind regards

Kirsty

Kirsty Lowe
Learning & Development Adviser
East Midlands Councils

Tel. 01664 502 637 Fax. 01664 502659

Please note the new email address, which is now kirsty.[email protected].

The East Midlands Councils is the consultative forum for all 46 authorities in the region. It provides support to Councils to improve their services and is a strong voice for the East Midlands.

Tigers battle to stop deportation of Tuilagi

Leicester Tigers are fighting to stop one of their brightest young prospects being deported.

Manu Tuilagi, the latest of a Samoan family’s dynasty to play for the club, has had his request for a work permit turned down by the Home Office.

It means the 19-year-old is not allowed to play for the club professionally, and could be sent back to the Pacific Islands.

Leicester’s head of operations, Simon Cohen, said the decision had left Tuilagi “devastated”, but pledged the club would do everything it could to fight the decision.

Full story

UK Attracting The Brightest And The Best In Skills

In the best interests of the UK economy and labour market, the MAC has produced a package of recommendations on key areas of Tier 1.

The first review by the Migration Advisory Committee (MAC) of the highly skilled migration routes (Tier 1) of the Government’s Points Based System for managed migration recommends that the routes should be maintained.

These recommendations aim to maintain well designed immigration routes to attract the “brightest and best” to come to the UK to work in the top 10 per cent of graduate jobs. In particular, the MAC recommends that:

• People with an undergraduate degree as their highest qualification should be allowed in under Tier 1 General route, subject to high previous earnings;
• The points available under the Tier 1 General route are updated to ensure that only the most highly skilled immigrants are admitted through this route; and
• The initial leave to remain entitlement under the Tier 1 General route is reduced from three to two years, with a three year extension subject to evidence that the individual is in highly skilled employment.

Chair of the Migration Advisory Committee, Professor David Metcalf, said:

“The highly skilled route of the Points Based System is very important to the UK economy. Therefore, it should be maintained and improved in order to ensure that the UK continues to attract the brightest and best.

“We are clear that Tier 1 migrants must not displace or undercut UK workers.  Immigration should not serve as a disincentive to employers to invest in training to improve the skills of workers in Britain.

“The recommendations that we have made will ensure that the system is robust enough to deal with the changing global economy and that the UK remains attractive for foreign investment.”

The Government’s objective for Tier 1 is to attract and retain people who will increase the skills and knowledge of the UK workforce, while maintaining the flexibility of the UK labour market.

In order to meet this objective, the MAC recommends that all four routes of Tier 1 (General, Post-Study Work, Entrepreneur and Investor) are retained.

In addition, for the Tier 1 General route, the MAC recommends that:

• The Government rapidly and thoroughly reviews the salary multipliers used to convert prior earnings from outside the UK into a UK equivalent; and
• UK Border Agency considers the operational feasibility of an employer acting as a guarantor for an individual’s maintenance requirement within the Tier 1 General route.

For the Post-Study Work Route (PSWR), the MAC recommends the following:

• The Government carries out research into the economic returns to studying at particular educational institutions and for particular degree subjects in the UK in order to review access to the Post-Study Work Route for foreign graduates; and
• The grant of leave under this Route remains at its current level of two years.
• For the Entrepreneur Route the MAC recommends the following:
• The UK Border Agency dedicates sufficient resources to examination of whether jobs created by individuals represent a genuine net increase in jobs.

It is for the Government to decide whether and when to accept these recommendations, as well as the timescales for implementation.

Important changes for sponsors under the points-based system

The UK Border Agency has today published revised guidance for employers and education providers who sponsor migrants under the points-based system, and has enabled education providers to use the sponsorship management system for the first time.

The sponsor guidance has now been split into separate documents for employers (Tiers 2 and 5 of the points-based system) and for education providers (Tier 4). Both guidance documents, together with a list of changes from the previous guidance, can be downloaded from the sponsor guidance page of this website.

Additionally, the sponsorship management system is now available to Tier 4 sponsors, enabling them to issue confirmations of acceptance for studies (CAS) for the first time. During a voluntary trial period which will run until February 2010, Tier 4 sponsors will be able to choose whether to issue visa letters or CAS to migrants applying to them from inside the United Kingdom. CAS will completely replace visa letters next February.

For more information about how Tier 4 sponsors can use the sponsorship management system, see the Tier 4 phase 3 news story.

Sponsorship management system launches for Tier 4 sponsors in 11 days

Phase 3 of Tier 4 of the points-based system will go live on 5 October, with the start of a voluntary trial period for the sponsorship magagement system.

During the trial period, Tier 4 sponsors will be able to continue using visa letters while gradually adopting the use of the sponsorship management system to issue confirmations of acceptance for studies. Confirmations of acceptance for studies will become mandatory in February 2010.

Between 5 October 2009 and February 2010, sponsors will be able to issue confirmations of acceptance for studies, visa letters or a combination of both to prospective students who are applying to them from within the United Kingdom. Prospective students applying from outside the United Kingdom will still have to apply with a visa letter until February 2010.

For further details on the implementation of Tier 4, download the Tier 4 implementation plan (PDF 79K opens in a new window).

You can find more information about the sponsorship management system and how you can use it in the Sponsorship management system section of the UKBA website.

Changes to the Immigration Rules

The latest Statement of Changes in Immigration Rules was laid before Parliament yesterday.

The changes include:

‘The Immigration Rules are being amended to make provision for the launch of the electronic Confirmation of Acceptance for Studies (CAS) for Tier 4 of the points-based system. This will strengthen the sponsorship arrangements for Tier 4 and provide educational institutions with a fast and straightforward electronic system to sponsor students. As a transitional arrangement the current visa letters will continue as an alternative to CAS in the short term.

‘A new Representatives of Overseas Business category which replaces the old Sole Representatives category. The new category introduces a requirement to speak English, which will ensure business representatives are able to make an effective contribution while they are here. It makes provision for representatives of overseas media organisations under the Immigration Rules.

‘The arrangements for migrants covered by the judgment of 6 April 2009 in the judicial review brought by the HSMP Forum Ltd are being brought within the Immigration Rules.

‘Minor technical changes are being made to various categories of the points-based system.

This Statement of Changes in Immigration Rules will be incorporated into a consolidated version of the Immigration Rules which can be found under the ‘Policy and Law’ section of this website. You can also find copies of all the Statement of Changes in Immigration Rules issued since May 2003 in this section.

The changes will come into effect on 1 October 2009. Updated guidance for sponsors and applicants will be available on this website from 30 September 2009.

New controls help protect jobs for British workforce

A raft of new government measures will ensure that resident workers can have every opportunity to fill vacancies before they are offered to workers abroad, the Home Secretary announced today.Following careful consideration, the government has accepted the recommendations made last month by the Migration Advisory Committee to tighten up the rules controlling when skilled workers are allowed to take jobs in the United Kingdom under the government’s points-based system.

This will mean that, from next year, all jobs must be advertised to British workers in Jobcentre Plus for four weeks – extended from two weeks – before companies can seek to employ individuals from outside Europe. This will ensure that British workers not only are first in line for jobs but also have more time in which to apply.

The government will also extend the qualifying period for all those overseas workers who want to transfer to work at their company’s United Kingdom base. This will mean that they will need to have worked for their firm for at least a year – rather than six months as at present – before they can transfer here.

Additionally, the minimum salary that will allow an individual to qualify as a skilled worker and be eligible to work in the United Kingdom will rise, from £17,000 to £20,000.

Home Secretary Alan Johnson said:

‘The introduction of the points-based system has radically improved our ability to respond quickly to changing economic circumstances.

‘We have now accepted all of the committee’s recommendations and we will continue to work with them to make sure that we use the flexibility in the points-based system to the best advantage of society and the economy.

‘These changes will ensure that businesses can recruit the skilled workers that the economy needs, but not at the expense of British workers, nor as a cheaper alternative to investing in the skills of the existing workforce.’

A total of 16 recommendations were put forward by the Migration Advisory Committee, all of which will now be put in place to ensure that the points-based system does more to support United Kingdom workers while continuing to facilitate the trade, travel, and study that benefits the United Kingdom.

In reaching this decision, the government has been advised by informative discussions with businesses and key public service organisations. It will continue to work with business to develop a plan for implementing the recommendations.

Next Page »