THE Government's overhaul of UK immigration began with the introduction of the new points- based system.
Replacing the previous 80 entry routes into the UK with just five, foreign nationals will be assessed against a list of criteria and will be required to achieve a minimum number of points. A new code of practice on employment checks and new penalties
for offending employers now applies.
Employers will now have to prove they cannot fill skilled posts with a UK worker and must demonstrate that the vacancy has been advertised in the UK (unless the job is on the shortage occupation list) before considering citizens of non-European Economic Area countries. Foreign nationals will now require a job offer before applying for a visa.
The emphasis on accountability in the new system will undoubtedly worry employers. Companies are familiar with checking the immigration status of new employees but the new system is stricter. An employer must not only be satisfied that correct documentation has been produced but must also take valid copies, carry out the same checks at least once every 12 months during the employment and retain all documentation securely for a period of two years after the employment has ended.
With the frequency of surprise inspections by authorities increasing, employers cannot afford to get it wrong. They can be fined up to £10,000 per illegal employee, and can only establish an excuse against liability by carrying out the checks correctly. Additionally, a new offence for knowingly employing illegal workers could result in a two-year prison sentence and/or an unlimited fine.
Another concern for employers will be the interaction with other existing obligations. This is particularly true in the context of a Transfer of Undertakings (Protection of Employment) or TUPE transfer. Where there has been a transfer of a business, or part of a business, or a so-called "service provision change", the new employer inherits all rights, liabilities and obligations in relation to the transferring employees. The UK Border Agency's new code of practice makes it clear that this does not extend to inheriting the benefit of the immigration checks that the old employer has conducted. New employers will be liable for penalties and prosecution if checks are not carried out on employees subject to immigration control.
There is a 28-day period of grace following the transfer in which the checks can be done. Employers must ensure that they do not lose sight of their obligations in the busy period that often follows a transfer. It would not be sensible to rely on warranties in the purchase agreement as they may not provide complete protection. Certainly, they cannot shift responsibility for a criminal offence – but they might require the transferor to indemnify the new employer in respect of financial loss. However, that comfort may not exist in a situation where there is no ongoing relationship between the old and new employer.
• Donna Reynolds is a solicitor with CCW Business Lawyers
The full article contains 508 words and appears in The Scotsman newspaper.
