The New UK Immigration System for Work Permits: What Employers Need to Know Now

The UK government has recently announced that a new immigration system for sponsoring foreign nationals (that is, foreign nationals who are not from one of the countries that make up the European Economic Area, or “non-EEA foreign nationals”) will come into effect on 27 November 2008.

The new system (parts of which are already operational) will be “points based,” and migrants will need to pass a points-based assessment before they can work in the United Kingdom. The system will consist of five tiers. Each tier has different points requirements. The number of points the migrant needs and the way the points are awarded will depend on the tier under which he or she is applying. Points will be awarded to reflect the migrant’s ability, experience, age, and, where appropriate, the level of need within the sector in which the migrant will be working.

Tier 2, as it will be known, relates to skilled workers and will replace the current UK work permit regime in its entirety starting at the end of November. Although Tier 2 is not the only route by which UK employers can hire foreign nationals, it is the tier most employers are likely to focus on as it covers skilled workers with a job offer and intracompany transfers.

Under Tier 2, before UK employers can lawfully employ non-EEA foreign nationals, they will need to apply for a sponsorship license. This process is started by the employer submitting an online application to the UK Border Agency (UK BA). Within 10 days of the employer submitting the online application, the employer must provide the UK BA with certain prescribed hard-copy supporting documents. As part of the application process, the UK BA will carry out extensive checks on prospective applicants that may include an onsite visit by UK BA immigration officers. This is particular likely in cases where the UK BA knows very little about the employer making the application or has doubt as to the genuineness of the application. In carrying out these checks, the UK BA has the power to issue civil penalties to employers (employers can be liable for a fine of up to £10,000) or to refer cases for criminal prosecution if it finds evidence of wrongdoing or criminal activity.

If an employer is granted a sponsorship license, the employer is placed on a list of all organizations licensed under the points-based system to sponsor migrants.

Broadly speaking, in submitting its application for a sponsorship license, the employer will be making the following pledges and obligations:

• To maintain documentation relating to foreign national employees, including contract details and copies of work eligibility documents
• To comply with express reporting duties, which include informing the UK BA of any significant change in the migrant’s circumstances, or the migrant’s failure to report to work for 10 days or more without permission
• To cooperate with the UK BA to ensure that employees may lawfully work in the United Kingdom
• To issue Certificates of Sponsorship only to individuals who meet the Tier 2 criteria

In submitting its application for sponsorship, employers will need to designate certain people to carry out functions under the sponsorship regime. These roles are as follows:

• Authorizing Officer—This person will ultimately be responsible for all individuals that have access to the organization’s sponsorship activities via the electronic sponsorship management system (SMS). Access to SMS will only be granted when the employer receives a sponsorship license.
• Key Contact—The key contact will be the employer’s main point of contact with the UK BA.
• Level 1 User—The holder of this role will undertake the organization’s day-to-day activities with regard to sponsorship and will have full control of the SMS. This person also will have the power to set up accounts and permissions for other employees who require access to the SMS.
• Level 2 User—Those in this role will also have access to the SMS but will have more administrative tasks, such as assigning Certificates of Sponsorship and reporting migrant activity.

Assuming the UK BA is satisfied that the employer can carry out its duties under Tier 2, it will award the employer either an “A” or “B” rating. An “A” rating will be given to an employer where the UK BA is satisfied that the employer can carry out its sponsorship duties; a “B” rating will be given where the UK BA has some concerns about either the employer’s previous immigration history or its ability to carry out some of the new compliance and reporting duties. Approval will not be given if the UK BA is not satisfied that the employer can carry out its duties. Assuming a license is issued, it will be valid for four years and can thereafter be renewed.

Once licensed, the UK employer will be able to request Certificates of Sponsorship for prospective employees via the SMS. The resulting certificate will be little more than a unique reference number that will be issued almost instantaneously and will be valid for up to three years.

A Certificate of Sponsorship alone, however, does not guarantee entry into the United Kingdom. The prospective employee will also be required to obtain prior entry clearance before arrival in the United Kingdom. It is anticipated that under the new entry clearance system, the evidentiary requirements will be very prescriptive and if the prospective employee does not strictly adhere to these requirements, the application will be refused. It is also likely that when Tier 2 goes live on 27 November 2008, the entry clearance procedures described above may take up to eight weeks to process.

More specific details concerning Tier 2 are due to be published before it takes effect, and we will provide a further update at that time. If you have any questions about any of the issues raised in this Morgan Lewis Immigration Alert, please contact:

London
Simeon Spencer
+44 (0)20 3201 5520
simeon.spencer@morganlewis.com

Rachel Ashwood
+44 (0)20 3201 5557
rashwood@morganlewis.com

San Francisco
A. James Vázquez-Azpiri
415.442.1343
ajvazquez@morganlewis.com

Washington, D.C.
Eleanor Pelta
202.739.5050
epelta@morganlewis.com

About Morgan, Lewis & Bockius LLP
Morgan Lewis is a global law firm with more than 1,400 lawyers in 22 offices located in Beijing, Boston, Brussels, Chicago, Dallas, Frankfurt, Harrisburg, Houston, Irvine, London, Los Angeles, Miami, Minneapolis, New York, Palo Alto, Paris, Philadelphia, Pittsburgh, Princeton, San Francisco, Tokyo, and Washington, D.C. For more information about Morgan Lewis or its practices, please visit us online at www.morganlewis.com.