Immigration: Control in a crisis

HR Law looks at recent and expected immigration changes, and their context, and offers some top tips for employers on staying ahead.

Ports, airports and rail terminals geared up for the busiest travel weekend of the year expecting immigration troubles. Sure enough, trouble arrived, a great deal more quickly than many would-be holidaymakers. The cross-channel rail operator seems powerless to stop nightly incursions of hundreds of migrants; in Kent, the emergency response saw Operation Stack relegate the M20 to a huge car and lorry park. Across Europe, the darkening picture of mass migration and people trafficking on an unprecedented scale is disrupting transport, overwhelming health and humanitarian services and hitting local economies. There is no simple solution. The only certainty seems to be that it will get worse.

All this feeds into an immigration debate that makes politicians nervous. The UK Government is, like its predecessors, determined to show it is getting a grip on the issue and has answers. More legislation, more policy initiatives, more restructuring of departments, caps on numbers – how can employers plan ahead?

If the Cap hits, bear it

It has finally happened: demand has exceeded supply. Since the introduction of the Points Based System in 2008, an annual quota of 20,700 Restricted Certificates of Sponsorship has applied, divided into monthly allocations. In June and July 2015, there were more requests than allocations, so those scoring the fewest points were refused. In practice, this means:

• Even where a sponsor has met the prescribed Resident Labour Market Test to demonstrate that there was no immediately available “settled worker”, requests below the points threshold (45 points in July, 50 points in June) were unsuccessful. 
• Broadly, the cap operates by eliminating roles with lower remuneration.
• The default minimum level is 32 points. 50 points equates to a minimum salary of £46,000 or above (when the job is not at PhD, not on the designated shortage occupation list and has passed a RLMT).
• There is no right of appeal as such against a refusal of an allocation request which falls short of threshold.
• Sponsors must not artificially inflate pay to get around the RLMT or cap in order to hire a particular migrant. Those caught doing so face licence revocation and possible criminal prosecution, and my fall foul of discrimination law.

Top tips to deal with the cap

• For mid-level roles which do not meet the official shortage occupation criteria, be aware that completing a prescribed RLMT no longer assures an allocation.
• Plan ahead to avoid dependence on a migrant who you may be unable to retain: make sure skills and knowledge are transferred to your resident employees.
• Ensure that offers of employment are always subject to immigration permission.
• Do not discriminate against applicants who may need sponsorship by automatically ruling them out (which could land you with a discrimination claim), but have a plan in the event that you cannot sponsor a migrant because of the cap.

The NHS Surcharge – migrants must contribute

Concerns about health tourism have long exercised the Government. In April, the NHS surcharge, provided for under the Immigration Act 2014, was added to all applications for sponsored migrants. A revision in early July integrated the payment process in fast track applications. In summary, applicants must register for a modest charge (currently applied at a zero rate for intra-company transferees). The limited scope and low overall cost, relative to the overall cost of employing a non-EEA national, establishes the contributory principle but has few significant implications for sponsoring employers.

Top tip to deal with the NHS surcharge

• Don’t forget it! It is now essential for a valid application. If you reimburse immigration-related expenses, cover it.

Immigration Bill 2015

Another Immigration Act, hard on the heels of the last? Our Government is determined to show its ability to balance control of immigration numbers with the needs of the economy. Anticipating protests from employers and industry bodies, the Prime Minister’s speech introducing the Bill on 21 May linked further restrictions to a drive to increase the skills of the resident workforce to reduce reliance on skilled immigration. A realistic aim? We shall see. The conspicuous failure of his last Government to deliver on its promise to reduce net immigration from hundreds to tens of thousands by the end of the Parliament is a strong impetus. This week senior NHS figures have slammed the high levels of recruitment of overseas nurses as “distracting, frustrating and expensive” and “morally indefensible” when there are not enough training places for UK nurses because of funding cuts.

Measures with particular relevance to employers include:

• A new offence of illegal working, so that individual migrants as well as employers can be prosecuted and earnings from illegal working can be seized as proceeds of crime.
• A new enforcement agency with increased investigatory powers and remit will speared a drive to target illegal employment.
• Employment agencies will be banned from recruiting solely from abroad without advertising all UK jobs locally – in English.
• There will be a consultation on a “skills levy” on employers of migrants to fund apprenticeships for resident workers.

More changes ahead for employers?

And there is more. The Government’s unstinting commitment to reducing economic migration has prompted it to ask the Migration Advisory Committee to evaluate further restrictions to Tier 2, with potentially significant impacts on Sponsored Migrants and their families:

• Options to prioritise “genuine” skills shortages to the detriment of those the Government will not recognise.
• Imposing time limits for certain sectors to stay on the designated shortage occupation list.
• Restricting or removing the current automatic right of Tier 2 dependents to work
• Raising the bar for Tier 2 (Intra Company Transfers), including applying the immigration health surcharge in full.
• Raising the current minimum salary levels set out in the Standard Occupational Classification-based Codes of Practice.
• The “call to evidence” went out on 2 July. A report is expected in the autumn.

Top tips for getting ready for the new regime

• Are your prevention of illegal working procedures and sponsor compliance systems robust and up to date? If not, act now. Find the problems and deal with them before they find you. Don’t let your business become a target for the beefed up enforcers on your watch.
• If you rely on low-cost non-EEA labour, including through agencies, think carefully about how and where you recruit.
• Keep a careful eye on SOC codes and bear in mind that it may be harder to recruit in future.
• Stand by for the new skills levy.