Ince & Co - International Law Firm
The UK immigration system is currently undergoing major changes which impact considerably on those employing nationals of non-EU countries. The new system is a points-based system (where points are awarded on the basis of, for example, ability/qualifications, experience, age, previous earnings, English language ability) and will mean that applications for the right to work in the UK will eventually be under one of five tiers.
Applications under tier 2 (skilled workers with a job offer, including those currently employed abroad who wish to transfer intra-company to work in the UK), are to be assessed under the new points-based regime from the end of November 2008 (along with applications under tier 5 (temporary workers)). From that time, all applications for permits to work in the UK under either of those tiers will require the support of a sponsor (who must be the applicant’s employer). Employers will therefore need to apply for a sponsorship licence in order to be able to employ workers who fall within either of these categories.
Once an employer has obtained a sponsorship licence, it may issue sponsorship certificates (at a cost of £170 each time) to those non-EEA nationals whom it wishes to employ in the UK. A certificate of sponsorship does not guarantee that the prospective employee will be granted a permit to work in the UK, but a sponsorship certificate from a licensed sponsor will be required for all tier 2 and 5 applications from November 2008 before the application will even be considered.
As a condition of keeping their sponsorship licence, sponsors will need to comply with certain ongoing duties or will risk losing its licence. A sponsor who loses its licence can no longer continue to employ those employees whose work permits have been approved under the points-based system. Non-compliance therefore has potentially extremely serious consequences for both employer and employee.
From November 2008, employers who “inherit” employees whose work permits are granted under the points-based regime and therefore require a sponsor will need to obtain a sponsorship licence, if they do not already have one in place, within 28 days of acquiring the employees, or the work permits will be withdrawn.
It should be noted that applications for the right to work in the UK for highly skilled workers (tier 1) have been subject to the new points-based system since 29 February 2008 and do not require a sponsor. Also since that date, an employer who knowingly employs an employee whom he or she knows is not entitled to work in the UK may face criminal sanctions of an unlimited fine and/or a prison sentence of up to two years, and a civil penalty of up to £10,000 per employee. To avoid such sanctions, the employer must show that they have carried out the appropriate checks (repeated as necessary) and were not aware that the employee was not legally entitled to work in the UK. This also applies to employees who are “inherited”
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