UK Immigration Update

UK Sponsorship System

From November 2008, the United Kingdom will implement a radically new immigration system for "migrant workers"—the term given to all workers from outside the European Economic Area and Switzerland. This update covers some of the recent developments in the evolution of the new system, along with an overview of its requirements.

 Requirements Under the New System

• Employers will need to be licensed as sponsors by the UK Border Agency (UKBA) to bring in, or to renew the immigration status of, these migrant workers after the November start date.
  
• Employers will not be licensed unless they can demonstrate that they are able to track, monitor and report to UKBA on their migrant worker population.

• Migrant workers will need to demonstrate that they meet the requirements of the immigration rules, including that they have enough points to qualify for the immigration category for which they are applying.

 Recent Developments

• UKBA has now published a deadline of October 1st for the receipt of sponsorship applications for those employers who will need to be sponsors by late November, when Tier 2 (skilled workers) and Tier 5 (youth mobility and temporary workers) of the new system will start.

• Employers designing HR systems and procedures to meet the requirements for sponsorship, and to anticipate the steps they will need to take to issue a Certificate of Sponsorship for a migrant worker, should review Appendix D of the Guidance for Sponsor Applications. Appendix D describes the documents that a sponsor should have and retain for each migrant worker to justify the issuance of a Certificate for that migrant worker. Note: This Guidance document continues to be amended, most recently on 16 September 2008.

• UKBA has recently published more details of the Tier 2 equivalent to a recruitment search undertaken under the current work permit regime. Under Tier 2, if the migrant is not an intra-company transfer or the position is not on the relevant Shortage Occupation List, the job must pass the "resident labour market" test (RMLT). One significant difference from the current work permit system is that the places where a position can be advertised to meet the RMLT will now be mandated and listed by job title, all as set out in recently published Codes of Practice.

• When a UKBA compliance officer makes a site visit, a sponsorship applicant or later a sponsor will be expected to readily provide a list of all employees who are migrant workers. UKBA has clarified that the officers are likely to check about 10 percent, but probably no more than 10 in total, of those employees against its own records. Compliance officers will not ignore inadequacies in an employer's "right to work" document checking procedures discovered during this process.

• The compliance officer will help the employer to resolve compliance problems that are minor, brief and few. The focus is to make sure that the employer is, or can become a sponsor, willing and able to comply with its obligations. As a general principle, UKBA officials say they are more interested in using their enforcement powers to root out systematic, knowing abuses of the immigration laws.
  
• The ambiguities of the "business visitor" category have been a continuing source of confusion for employers. UKBA recognises this and intends to publish new guidance for this category of non-"working" visitors before the Tier 2 (skilled workers) category starts so as to remove areas of uncertainty.

• UKBA has acknowledged that sponsors are likely to have employment law responsibilities to employees that may well clash with decisions taken by UKBA to curtail a migrant worker's ability to work and remain in the United Kingdom if the employer's sponsorship status lapses or is terminated. A senior UKBA official has promised to have these issues reconsidered.