Monday 19th April 2010

Immigration Laws & HR: Exposing the Boundaries

I recently attended an immigration seminar to find out more about the ongoing impact of the new points based immigration system on small to medium businesses.

Are they relevant to you?

• The immigration field is a changing landscape for employers and whilst the new points based system has been in place for over a year, the full understanding and impact of it continues to be felt among small to large businesses. For example, you may be a specialist business with the need for overseas workers who hold valuable skills for your type of work, or a bigger company which has operations over the world, but a UK base where people need to work regularly. These regulations apply to you!

• Being in our line of work, we do come across immigration issues regularly and therefore last month I attended an Immigration conference hosted by Davidson Morris and the Border Agency in order to find out more about the small print of these sanctions and what it could mean for our clients and other small to medium UK businesses.

Impact on the Employment Relationship

• An interesting topic brought to light was how the immigration rules impact the employment relationship between employer and employee, as it is quite an oppressing force to meet all the criteria and at the same time generate the trust and confidence needed to sustain an enduring employment relationship. For example, could your UK employees be offended when requested to provide their passport as an identification check?

• Certainly, pressure is applied to both parties when there is criminal liability involved, for example this is similar on the health and safety front where employers have criminal and civil liability for any breaches to health and safety at work. The fact is the law states that it is the employer’s responsibility to ensure identification is valid and documented for every employee, even those who are British citizens.

Diversity and Immigration Control – the lines are grey

• You may feel that the notion of having stringent checks, processes and document requests may contrast with the idea of encouraging a multi-cultural, diverse workforce whose unique skills should be actively used by employers. Indeed, there is a contradiction here and more so when assessing the new Equality Bill which looks to be introduced this year if Labour remain in office. This will incorporate an element of positive action to be taken in the UK to promote a more diverse workforce, where it is required, which would involve selecting non-UK nationals for roles if they are at the equal level to a UK national being interviewed for the role. This conflicts with the view from the Border agency that the immigrant being sponsored should not be selected if at an equal level with a UK national. It will therefore be interesting to note a shifting stance of either party when and if this bill comes into force.

• Within the theme of equality, it is also important for employers to understand their responsibility when it comes to potentially discriminating someone for requiring a sponsored permit. For example, if someone were employed on a post-study work visa, they accrued over a years continuous service and this expired – the employer would have a responsibility to sponsor that employee.

Sponsoring a Migrant

• The most common way to sponsor a migrant worker is through a Tier 2 general work visa. This was the focus of the Border Agency talk in terms of complying with the criteria set out and the ways in which the sponsor will be assessed.

• The three ways this is carried out is through document checks, sponsor interviews and sponsored migrant interviews, i.e. the information will have to be backed up with talks from the sponsors and migrants, so all communication must be consistent throughout – it is best employers attempt to find out the full story on the migrant they are sponsoring.

Determining the True Sponsor – Agency Workers

• An interesting point when assessing sponsor responsibility is the instance when an agency worker who is a migrant is taken on by a company. It must be ascertained that the sponsor themselves have full control of the migrants duties, functions, outcomes and salary – which is occasionally difficult to prove given the nature of an agency worker.

• The best advice is to ensure you have a tangible, clearly set out agreement with the agency in terms of which party decides the elements previously described. It would also be an idea to confirm (& record) with the agency that they have valid permits for the workers and when entering a relationship with them that they are a sponsor themselves.

Managing the Risk

• With employers being threatened by criminal liability for the checks required to ensure their workers are legally working in the UK, the focus comes back to managing this risk.

• One way to do this is to incorporate wording into offer letters and contracts to the effect of ‘offers subject to availability of necessary immigration requirements’ and to include in your handbook that the employee should advise of any changes in immigration status and personal details.

Conclusion – the need for formal HR processes and procedures

• In conclusion, although the immigration rules, contracts of employment and diversity do not always go hand in hand, it is important to protect your company from any breach or sanctions which could result in a financial burden or the loss of your most valuable employees.

• The new immigration arrangements impose new requirements for employers to take control of ‘policing’ their own company. This can be seen in other employment areas, for example disciplinary & grievance has moved from a statutory position to an advisory one, as well as in the past maternity and paternity pay becoming the responsibility of the employer to pay.

• Therefore, despite the complicated look of the points based system, it is something your company can efficiently carry out if there are the formal processes and procedures in place.