Immigration Consultancy for UK Employers

Brandon Consultancy Immigration & Employment UK is providing various immigration and business  related consultancy services for companies and foreign nationals ( migrant workers)  who live and work in the UK or want to immigrate in the UK.

We provide a comprehensive service to UK employers to ensure that they can meet their employment requirements in full complicity with UK immigration legislation. This service includes both advice as to the applicable legislation intended to prevention of illegal working in the UK and employee vetting.

The concept of sponsorship is at the heart of the points-based system.

If you want to employ a migrant worker, you must be their sponsor during their stay in the UK (unless they are coming here for 6 months or less in certain circumstances). And before you can sponsor a migrant, you must obtain a sponsor licence.

Before you apply for a licence, you should check whether you are eligible to be a sponsor, and ensure that you have the right human resource (HR) systems in place to comply with your sponsorship duties.

Education providers – enrolling foreign students

 Nationals of countries in the European Economic Area (EEA) and Switzerland can study in the UK without any restrictions.

Nationals of other countries can come to the UK as students in 2 ways:

Students who want to undertake a long course of study, or who want to work during their stay in the UK, must apply under Tier 4 of the UK’s point-based system for immigration. As their education provider, you will need to ‘sponsor’ these students during their stay.

You must obtain a Tier 4 sponsor licence before you can sponsor students.

If a student wants to study a short course and will not work during their stay, they can apply to come to the UK as a student visitor (or a child visitor if they are aged under 18). You will not need to sponsor these students, but you will need to meet certain requirements.

Migrants must demonstrate their English language ability if they want to come to or remain in the UK in certain immigration categories, or if they want to settle here or become British citizens.

Illegal Working and Employers Civil Penalties

Unless a person is a British Citizen, settled person with permanent residence or a member of the EEA (European Economic Area) or Switzerland, they are likely to need permission to work in the UK. The Government has set measures to prevent illegal working in UK markets and there is a positive duty on the employer to ensure that they employ people through legal means.

On 3rd December 2010, the UK Border Agency published an updated version of their summary guidance for employers for the prevention of illegal working. The guidance explains what employers need to know about the law against illegal working and what is needed to comply with requirements. The guidance is intended to be a quick reference tool and should be read along with the comprehensive guidance which was updated on 2nd of November 2010.

It provides that employers can be imposed with fines where they employ people over 16 who are not allowed to work.

UKBA (UK Border Agency) routinely carries out enforcement and compliance checks at work places. Where they discover any illegal migrants working in the work place, they will issue the employer with a Notification of potential liability (NOPL). The UKBA civil penalty compliance team will then consider whether or not to issue a notification of liability (NOL) and a civil penalty on the employer. UK based employers are required by law to verify the immigration status of their employees.

They can do this by checking one of the following:

Alternatively, employers can contact UKBA (employer checking service) to determine the potential employee’s status or where for instance, the employee’s documents are with the Home Office. UKBA provides two lists, List A and List B which contain documents that the employer needs to check before hiring an employee. Depending on the employee’s situation, the employer may need to see a combination of documents from these lists and the documents must be originals.

The employer is required to check the validity of the document including

Civil Penalties

UKBA assess the amount of the penalty the employer is liable to pay and this will depend on the nature of the circumstances and compliance by the employer. They may issue a warning letter or the maximum fine of £10,000 per worker. Lists of civil penalties issued on employers can be found on UKBA’s website.

Where an NOL and civil penalty is served upon the employer, they must within 28 days take the following action:

Knowingly employing illegal migrants

Employers can be convicted of a criminal offence under the 2006 Act if they knowingly permit illegal labour. They can be convicted of either

Nationals of countries in the European Economic Area (EEA) and Switzerland can live and work in the UK without needing to apply under the UK’s points-based system. Nationals of the following countries can work here without any restrictions.

Employing  Bulgarian and Romanian nationals- A2 Countries

Bulgaria and Romania are referred to as the A2 countries and they have also joined the European Union. They will however, be subject to worker authorisation unless exempt from doing so. They will need to adduce a document confirming that they are exempt or that they have permission to work. The Accession (Immigration Worker Authorisation) Regulations 2006 provide that employers take copies of the relevant authorisation documents. An employer may be liable to prosecution where they employ unauthorised or unregistered employees. The employer may be liable of a fine of up to £5000.

Nationals of Bulgaria and Romania (known as the ‘A2 countries’) may need to obtain an accession worker card before they can work here, and their employer may need to obtain a work permit for them.

Can you employ Bulgarian and Romanian workers?

If you want to employ Bulgarian and Romanian workers to do any other type of work, you must follow the 3 steps below:

1. Check whether the worker needs an accession worker card

A Bulgarian or Romanian national must obtain an accession worker card before they can work for you in the UK, unless they are exempt from the need to obtain a card.

A Bulgarian and Romanian national is exempt if:

-they have permission to remain in the UK which does not place any restrictions on their employment here – for example, if they have temporary or permanent permission to remain here as the partner of a British citizen or a person settled in the UK; or

-they have dual nationality and are also a citizen of another EEA state (including the UK) or Switzerland; or

-they are a family member of a Bulgarian or Romanian national who has an accession worker card; or

-they are a family member of a Bulgarian or Romanian national who is exempt from the need to obtain an accession worker card;*

-they are a family member of an EEA national (except a national of Bulgaria or Romania) who is exercising a Treaty right in the UK; or

-they were given permission to enter or remain in the UK before 1 January 2007, and their passport was endorsed with a condition restricting their employment to a particular employer or category of employment;** or

-they have been working with permission, and without interruption, in the UK for at least 12 months ending on or after 31 December 2006 (for example, they have been working here with an accession worker card for a year, or are in the UK as a student and have been in part-time employment continuously for a year); or

-they hold a registration certificate confirming that they have unrestricted access to the labour market because they are highly skilled; or

-they hold a registration certificate confirming that they are a student with restricted permission to take employment for less than 20 hours per week (during term time); or

-they are in the UK under the  SAWS and hold a valid work card issued by a SAWS operator; or

-they are providing services in the UK on behalf of an employer established elsewhere in the EEA; or

-they are a member of a diplomatic mission, the family member of a diplomat, or the family member of anyone who has diplomatic immunity.

2. Apply for a work permit (if necessary)

If the Bulgarian or Romanian national requires an accession worker card, you may need to obtain a work permit for them before they can apply for that card.

3. Wait for the worker to obtain their accession worker card (if necessary)

You should not employ the worker until they have received their accession worker card from us.

 Compliance with legislation relating to prevention of illegal working

 Sponsor Licence

A Sponsor Licence enables a UK employer to sponsor skilled migrants to work for them in the UK under point based system. An employing entity which does not have a Sponsor Licence will be unable to sponsor migrant workers.

Tier 2 is the replacement to the work permit scheme and only employers with a Sponsor Licence, issued by the UK Border Agency upon application and approval, will be able to issue a Certificate of Sponsorship to the prospective employee or employee in an overseas branch.

Civil Penalty Objection/Corporate Reputation Preservation

A UK entity found to be employing migrant workers illegally may be subject to a civil penalty of up to £10,000 per employee and/or those who run the business may be subject to criminal prosecution. In addition, they may be named and shamed on the publicly available list of entities which have received a civil penalty.

As these entities may also have their Sponsor Licence withdrawn, the potential for damage to reputation for any entity which finds itself on that list is significant.

How we can help? Our Services

Any entity found to be employing a migrant worker illegally may have a defence if they can show that it carried out appropriate checks of the employee’s status document in the manner specified by the UK Border Agency. Employers should ensure that their HR function is trained to conduct the appropriate checks.

If you have been served with a notice or liability (or potential ability) we can assist you by making representations to UKBA within the 28 days limit. There may be a whole range of factors which the compliance team could consider and this may result in them reducing any fine that is imposed or not imposing a fine but rather, issuing a warning letter (depending on the circumstances of the case). We can also assist with lodging an appeal against the fine where representations have not been accepted.

BC UK offers a complete package of assistance and advice to UK businesses in relation to all the above requirements.

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