RIGHT TO WORK IN THE UK

Updated 22/11/09. This information updates s.29.5 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
The draft Immigration Bill, published on 12 November 2009, will if passed consolidate existing immigration law to create a complete new framework for immigration. The draft bill and related documentation can be accessed via tinyurl.com/ykyfue3. Details of the consultation, open until 3 February 2010, are at tinyurl.com/yavbaxd.

From 29 February 2008, rules on people from outside the European Economic Area (EU + Iceland, Liechtenstein and Norway) and Switzerland working in the UK were significantly tightened. The main rules likely to affect voluntary organisations as employers are set out below.

Checking right to work
Under the Immigration, Asylum and Nationality Act 2006, it is no longer enough for the employer simply to check and keep a copy of an employee's passport or other relevant documents at the beginning of employment. If a person who is hired on or after 29 February 2008 has limited leave to remain in the UK, the checks have to be repeated every 12 months. In addition employers have to take action if they become aware at any stage that a person is working illegally. An employer can be fined £10,000 for each person found to be working illegally, unless they can show that they saw and kept a copy of the relevant documentation. An employer who knowingly hires someone who is not entitled to work in the UK could be subject to an unlimited fine and prison sentence of up to two years. The initial checks must be done before the person is employed, and to avoid allegations of racial discrimination should be carried out for all potential employees.

From 24 November 2009 an ID card issued under the Identity Cards Act 2006 is acceptable documentation. A copy must of kept of both sides of the card. This provision is in the Immigration (Restrictions on Employment)(Amendment) Order 2009 at www.opsi.gov.uk/si/si2009/uksi_20092908_en_1.

Points-based system
Also under the new legislation the right to enter or remain in Britain is now based on a five-tier points system similar to Australia. Any employer who wants to hire or continue to hire a migrant worker (any worker who is not from the EEA or Switzerland) in tier 2 or in most tier 5 categories has to register first with the UK Border Agency as a licensed sponsor. Registration as a sponsor is also required before any existing migrant worker's work permit in these tiers can be changed, extended or renewed.

After registering, the sponsor then provides a certificate of sponsorship which enables the worker to apply to enter or remain in the UK. This decision as to whether the worker is admitted depends on the number of points the worker has. Points are based on the worker's skills (including aptitude, experience and age), the need for those skills in the UK economy, proficiency in English, prospective earnings, and funds available for maintenance.

Sponsors are responsible for workers they sponsor and must, amongst other things, inform the Border Agency if the worker does not turn up for the job, or is absent from work without consent for more than 10 days. Detailed HR systems must be in place to monitor all sponsored workers.

The five tiers are:

• Tier 1 for highly skilled individuals such as scientists started operating in early 2008. Applicants for admission to the UK or the right to remain in the UK under tier 1 do not need a job offer before they apply, and their permission to work is not linked to a particular job or type of work. The academic and financial qualification rules for tier 1 were tightened on 31 March 2009.



• Tier 2 is for skilled individuals such as teachers and nurses. It came into effect on 27 November 2008. This is the tier most likely to affect voluntary organisations. Any organisation which wants to hire a skilled worker from outside the EEA or Switzerland, or who will want to extend existing workers whose work permit ends, must register far enough in advance to ensure their sponsorship application can be processed in time, and they can issue the worker with the necessary certificate of sponsorship.
  
  Unless the occupation is on the government's list of shortage applications, the employer can issue a certificate of sponsorship only if it has conducted a resident labour market test. This means the employer has advertised at JobCentre Plus and in at least one other specified medium and could not fill the post from within the UK, EEA or Switzerland. The advertising must be for at least two weeks if the salary is £40,000 or less, or one week if the salary is over £40,000. The government announced on 7 September 2009 that from 2010 (date not specified) the two-week period will be extended to four weeks, and the minimum salary for a person to qualify as a skilled worker will be increased from £17,000 to £20,000.
  
  Advertising is not necessary for posts on the list of shortage occupations. The list was revised on 15 June 2009 and 12 November 2009. The changes most likely to affect voluntary organisations are removal of all social workers except those working in children/family services; changes to the list of medical and health-related occupations; changes to the skills criteria for care assistants, home carers and chefs; and the inclusion of special needs teachers, skilled orchestral musicians and contemporary dancers.
  
  Tier 2 also covers intra-company transfers, sports people, ministers of religion and some other religious workers, for whom different rules apply. The rules on intra-company transfers are also expected to be tightened in 2010, requiring the person to have worked for the company for at least one year rather than only six months as at present.



• Tier 5 for temporary workers and youth mobility schemes also came into effect on 27 November 2008. The provisions for temporary workers cover creative and sporting workers coming to the UK for up to 12 months, charity workers coming to the UK to do unpaid voluntary work for a charity for up to 12 months, religious workers who do not meet the criteria for entry under tier 2, workers on government authorised exchange schemes, and employees of overseas governments and international organisations.
  
  Temporary workers need to have a licensed sponsor. For those on exchange schemes, the sponsor is the body which manages the scheme, rather than the individual employer. Youth mobility schemes are for young people aged 18-31 from Australia, Canada, Japan and New Zealand. coming to the UK for up to 24 months. The individual's national government is the sponsor.



• Tier 4 is for students who are not from the European Economic Area or Switzerland, and came into effect from 31 March 2009. Their university or college must be registered as a sponsor.



• Tier 3 is a limited quota system for low-skilled workers to fill temporary shortages in specific industries. It is brought into effect only when needed.