UK Border Agency Issues Guidance on Technical Changes of Employment

Employees' terms and conditions of employment can change for any number of reasons. When an employer has obtained immigration authorisation for the employee to work, some changes of employment conditions can invalidate that authorisation if the United Kingdom Border Agency (UKBA) has not approved them. In late June, UKBA published guidance on notifying the Agency of "technical changes of employment." The guidance explains an employer's on-going obligation to seek UKBA's approval when changes occur to the terms and conditions under which it employs a work permit holder or, more recently, a Tier 2 migrant worker.

Requirements for Technical Versus Substantial Changes of Employment

If the employment condition changes are minor, i.e., "technical," UKBA will confirm that it agrees with this characterisation and approve the changes. For more substantial changes, the employer is required to ensure that the employee obtains new immigration authorisation in one of the Points-Based System (PBS) categories in order to continue employment with the employer lawfully. To avoid the risk of illegal employment, the employer must obtain either UKBA's approval of technical changes or the employee must obtain new immigration authorisation before the changes are implemented.

Consequences of Failure to Report Changes in Employment Conditions

The UK immigration status of a work permit holder or a Tier 2 migrant worker is granted on the basis of the specific criteria for the job that the employee will be performing. To avoid the risk of employing an immigration-controlled worker illegally due to a change of employment conditions, an employer must recognise and address changes of employment conditions. If a change of employment conditions is not reported, both the employer and employee may suffer sanctions when this comes to the attention of UKBA. The Agency can revoke the employee's work status and curtail the employee's leave to remain in the United Kingdom. UKBA might also assess a civil penalty against the employer for this non-compliance, restrict the employer's ability to bring in other migrant workers and, in more serious cases, initiate a criminal prosecution.

Another complication of a failure to notify a change of employment conditions has become apparent more recently. The new immigration system has been in place long enough now so that immigration-controlled employees have been filing PBS applications to obtain new authorisation to remain in their current employments. In reviewing these applications, UKBA compares the employment conditions described in the new application with UKBA's record of the employee's current immigration status. UKBA takes the position that unauthorised changes in employment conditions since the applicant's current immigration status was approved can make the current job different from the job for which the employee obtained current immigration status. Since the current job will not have been tested against immigration control factors, UKBA has been denying these applications and curtailing permission to remain in the United Kingdom on the ground that the employee has been working illegally.

Identifying and Addressing Changes in Employment Conditions

For the reasons discussed above, HR departments or other employees in a company responsible for managing immigrant workers must be able to recognise the potential for complications when changes of employment conditions affecting immigration-controlled employees are proposed. Indeed, these issues often arise when no one thinks an immigration issue is involved.

The new technical change of employment guidance identifies the following as changes in terms of employment that are technical:

• A change to the individual's personal details, such as a change of name on marriage
• A change to the company's business address and/or name
• A change of the employee's job location
• Restructuring of the company due to a takeover.

In acknowledgement of the current economic climate, a temporary reduction in working hours made to avoid redundancies will also be treated as a technical change if certain conditions are met. Similarly, salary increases since immigration approval will be treated as technical if the increase results only from annual incremental pay rises or other annual pay awards paid to most of the employer's staff.

Any of these or similar technical changes of employment conditions must be reported to UKBA before the changes take effect, and UKBA will respond by confirming that the change can be treated as a technical change or by rejecting the request as more than a technical change and require a new immigration application.

More substantial changes in the terms of employment of a work permit holder or a PBS migrant worker require that the employer ensure that the employee obtains an appropriate PBS migrant worker status that incorporates the changed terms. UKBA will generally consider the following changes of employment to be more than technical:

• The addition of greater responsibilities for the approved position
• A promotion from the approved job
• An internal transfer to a different job.

Note that although UKBA treats a company restructuring as a technical change, a change in the immigrant worker's position as a result of the restructuring is likely to constitute more than a technical change.

Considerations for Employers

Employers and immigrant workers must develop and have in place systems for monitoring proposed changes of immigrant workers' conditions of employment. By doing so, they will be able to address these changes and submit a technical change of employment notification or help the employee to obtain a new PBS status as soon as practicable. Otherwise, the employment could become illegal, with adverse consequences for both the employee and the employer.