In March 2006 the Government announced its plans to adopt a new points-based system (PBS) for economic migration. The stated aims of this new system were:
- better identification and attraction of migrants who have the most to contribute to the UK
- a more efficient, transparent and objective application process
- improved compliance and reduced scope for abuse.
The Government is constantly reviewing the requirements and changing the number of migrants who are allowed entry to work in the UK. If you want to employ a migrant worker, you must be their sponsor during their stay in the UK. Before you can sponsor a migrant, you must obtain a sponsor licence.
How do nurseries employ overseas workers?
The points-based system only covers migrants from outside the European Economic Area (EEA) and Switzerland. If you want to employ an EEA or Swiss national, you should be able to do this without needing permission from the UK Border Agency (UKBA). There are some restrictions on nationals of countries that have recently joined the EEA.
In what ways have the rules changed?
A number of changes to the Immigration Rules came into effect on 13 December 2012. These changes affect non-European Economic Area nationals applying to enter or remain in the UK.
The changes include:
- Non substantive changes to all PBS ( Points Based System) tiers.
- Establishing a more robust and clear criminality framework against which immigration applications will be assessed.
- Amendments to clarify the absences from the UK that are allowed during the continuous residence period for settlement for Tier 1 (General), Tier 2 and pre-points based system work routes (for example work permits, self-employment and business person).
How does the system work?
Under the points-based system, migrants must pass a points assessment before they can get permission to enter or remain in the UK.
Each of the system's four current tiers has different points requirements - the number of points the migrant needs and the way the points are awarded will depend on the tier. Points are awarded to reflect the migrant's ability, experience and age - and, when appropriate, the level of need in the migrant's chosen industry.
What are the tiers?
The points-based system consists of five tiers. These are:
- Tier 1 - for highly skilled workers, such as scientists and entrepreneurs
- Tier 2 - for skilled workers with a job offer, such as teachers and nurses
- Tier 4 - for students
- Tier 5 - for temporary workers, such as musicians coming to play in a concert, and participants in the youth mobility scheme.
Tier 3 is currently suspended.
How do I become a sponsor?
Applicants for entry clearance in Tiers 2 to 5 will need to provide a Certificates of Sponsorship (COS) from a licensed sponsor when making their application. In order to sponsor migrants, employers must:
- be registered as a sponsor following an application to the Home Office for licensed sponsor status, and
- satisfy the requirements for the particular tier or tiers in which they wish to sponsor migrants, and
- accept various responsibilities in relation to the employees’ immigration status.
Only applications in Tier 1 are sponsor-free. 'Highly skilled' individuals who have university qualifications and can prove higher previous earnings are entitled to work in the UK without being sponsored under a licence, and without having to be assigned a certificate of sponsorship.
Have the rules on employment from certain eastern European countries changed?
Yes. You can employ Nationals from European Economic Area (EEA) countries and Switzerland (except for Romanian and Bulgarian nationals who have restrictions placed on them). Bulgarian and Romanian nationals (known as EU2 workers) are free to come to the UK but unless exempt, they will be subject to worker authorisation. This means that they are only able to work in the UK if they hold a valid accession worker authorisation document or if they are exempt from authorisation.
What do I need to be aware of if I am selling my nursery?
If you are a sponsor you have a duty to inform UKBA of any significant change in its ownership or structure which includes TUPE transfers. The UKBA has provided information on what needs to be done.
- Where a sponsor (or part of a sponsor) transfers to another, and that transfer includes sponsored migrant employees, the new organisation requires a sponsor licence, while the transferring organisation must notify UKBA via the SMS (Sponsor Management System) within 28 days.
- Where a licensed sponsor is taken over by an organisation which is not registered, the existing sponsor must notify via SMS within 28 days, and the new organisation must make a valid application for a sponsor license within 28 days. If it fails to do this, UKBA will cut the leave to remain of all sponsored migrants within to 60 calendar days.
- If an organisation that is not registered is taken over by a company that is registered, the existing licensed sponsor must notify of the takeover within 28 days.
- Where both organisations are licensed, each organisation must notify that it has been taken over or has taken over the other as applicable, within 28 days.
What are the consequences?
It is illegal to employ someone who is not allowed to work in the UK. As an employer, you have a duty to check potential employees' documents, before you employ them, to ensure they have the right to work in the UK. This will enable you to establish a statutory (legal) excuse against having to pay a penalty.
To gain a statutory excuse, you must:
- ask for and take copies of original, acceptable documents showing that the person is allowed to work before they start working
- if a person has a restriction on the type of work they can do and/or the hours they can work, make sure the job you give them does not break those conditions.
If a person has a time limit on their right to work, you will only keep your excuse if you repeat the document checks at least once every 12 months. You will not have an excuse if you knowingly employ an illegal worker, even if you carry out the correct checks before or during their employment.
If you do not carry out these checks and are found employing an illegal worker you can be fined up to £10,000 for each illegal worker, or face up to two years in prison.
Jacqui Mann is director of HR4Nurseries
