15th November 2012
Immigration Law — everything a business needs to know
Jinnah Ghulam, head of the Immigration department at the Sheffield office of Cartwright King Solicitors, explains what businesses need to do to comply with new immigration law. Colleague and employment law specialist Aaliyah Kola-Amaar then looks at the implications in terms of employment law.
The UK Border Agency (UKBA) has imposed new and stricter regulations on all foreign nationals wanting to work in the UK. The old work permit has been replaced with a Points Based System with a number of new requirements that companies need to comply with or risk facing a fine of up to £10,000 for each illegal employee as well as criminal prosecution.
The new legislation shifts the responsibility away from individuals, with employers now having a legal obligation to make sure that every person they employ, regardless of their nationality and length of service, is legally permitted to work in the UK.
The immigration status of every member of staff therefore needs to be checked and all relevant documentation, which will vary according to an employee’s nationality and/or visa status, retained.
Some may question whether it is lawful to ask a job applicant if he/she requires permission to work in the UK — the answer is yes.
An employer can ask a job applicant if he or she requires permission to work in the UK, as long as all job applicants, regardless of colour, race, nationality, or ethnic or national origins, are asked the same question. Asking the question only to certain applicants based, for example, on their accent or skin colour could amount to unlawful race discrimination.
One way for employers to deal with this issue is to state in all letters inviting job applicants to interview that they will require documentary evidence of the applicant’s right to work in the UK. As obvious as this may be, there are many businesses that still simply don’t request this information.
When taking steps to guard against illegal working whilst still avoiding the risk of being accused of race discrimination, there are a number of steps that employers can take.
It is important not to treat candidates of foreign nationality unfavourably in the recruitment process. In February 2008, a “Code of practice on the avoidance of unlawful discrimination in employment practice whilst seeking to prevent illegal working” was introduced. Although the code is not legally binding, a failure to observe it may be taken into account by an employment tribunal in its assessment of a complaint of race discrimination.
Ms Aaliyah Kola-Amaar, who specialises in employment law at Cartwright King, recently dealt with a high profile business that had discriminated a foreign national based on his immigration status.
“Businesses quite often discriminate indirectly because they don’t have an understanding of current immigration laws which, as a consequence, has a knock on affect in employment law related issues.”
“Employers may err on the side of caution and fairly dismiss an employee whose right to work in the UK is not certain, therefore avoiding fines of up to £10,000 for employing illegal workers pursuant to the current Immigration Rules. Employers should however note that each case will turn on its own facts and employers should still follow a fair procedure.”
In some instances, depending on what visa the employee has, if a business in the UK wants to employ a foreign national subject to immigration control, they will have to apply to the UKBA for a Sponsorship License. If the business satisfies the UKBA requirements, a license will be granted.
Employers with a Sponsorship License must comply with strict conditions or risk losing their licence. Once the business has been issued with a license they are then in a position to employ the foreign national but this is subject to whether they are allocated certificates of sponsorship.
The employee has to make a separate visa application to remain or enter the UK. A visa is granted providing the individual meets the relevant Immigration Rules and scores enough points under the Points Based System.
Cartwright King has assisted numerous businesses, small and large with mitigating UKBA fines, immigration compliance, sponsorship licenses and visa applications for employees.