For the first time since the overhaul of the immigration system in 2008, the Government recently announced key changes that affect the entitlement of an overseas citizen to work and live in the UK.
Since 6 April, employers must pay overseas nursery teachers, managers, owners, assistants and nurses who apply to work in the UK a higher minimum salary than before.
In view of these changes, together with the increased fees for those wishing to enter and remain in the country, nurseries that wish to employ overseas workers should carefully consider the eligibility of their prospective employees to avoid any costly mistakes.
- Q: How does the current UK immigration system operate?
The UK immigration rules are modelled on the points-based system (PBS), which is currently used in Australia.
Since the implementation of the PBS in 2008, nurseries must have had a sponsorship licence before employing overseas workers in the UK.
A licence is also mandatory if a nursery wishes to continue employing migrants who were initially granted permits to work in the UK before the introduction of the PBS. The licence imposes specific duties on employers which include reporting to the UK Border Agency (UKBA) business changes and other alterations which affect the job and/or pay of an overseas worker, including certain absences from work.
In addition, individuals wishing to work in the UK must 'earn' a minimum number of points, and these are awarded according to various criteria including the individual's qualifications, earnings, English language ability and his or her available bank funds. The points for each of these criteria changed on 6 April.
- Q: How do the new rules affect nurseries?
Nurseries wishing to recruit overseas workers must first advertise the vacancy for a 28-day period, so that individuals already settled in the UK have the opportunity to apply for the position first. The method and place of advertisement will depend on whether the position is for a managerial, supervisory, teaching or assistant position at a nursery.
The prospective overseas workers themselves must also earn points if they wish to enter or remain in the UK. Those employed by a nursery that has been granted a sponsorship licence will automatically accrue a minimum number of points. This will also be the case if they have a minimum of personal bank funds and English language abilities.
While satisfying these criteria will be relatively straightforward, the nursery must also confirm that its prospective overseas workers can earn sufficient points from the two remaining criteria - qualifications and future UK earnings. Workers will accrue more points and will promote their prospects of successfully applying to work in the UK the higher their qualifications and future earnings.
The rules on qualifications and UK earnings changed on 6 April, and employers will be most concerned about the higher salary an overseas worker must be paid if he or she cannot acquire sufficient alternative points for qualifications. The pre-April rules allowed migrants to obtain a minimum number of points if their expected earnings in the UK were at least £17,000. However, under the new rules, overseas workers must earn a minimum of £20,000 in order to achieve any points at all.
As a result, nurseries that are not able to meet the minimum salary threshold should look to recruit those overseas workers who can earn alternative points from their qualifications. Fortunately, the changes on 6 April have resulted in more points being available for lower qualifications. Whereas workers could not previously earn any points if their qualifications were below the equivalent of a UK degree, the same worker will now be awarded minimum points for a qualification at GCE A-level or equivalent. In addition, a master's qualification is worth more points now than was previously the case.
- Q: How do these changes affect overseas nursery workers who are already working in the UK?
There are transitional provisions in relation to overseas workers already in the UK on work permits who wish to remain working here.
Provided they intend to remain working here for the same nursery and in the same capacity, they do not need to satisfy the criteria set out above in relation to English language abilities, their personal finances, salary and qualifications. However, the nursery must have a sponsorship licence in place before the expiry of the individual's work permit in order to continue employing them.
If the worker has been on a work permit in the UK for five years, they will normally be eligible to apply for permanent residence, allowing them to live and work in the UK free from most of the usual immigration restrictions.
- Q: Are there any other categories of overseas workers?
Rather confusingly, certain workers within Europe fall into a category whereby a nursery does not need to have a sponsorship licence in place.
Specific rules apply to Bulgarian and Romanian workers, while other rules are in place for those from the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Slovakia and Slovenia. Depending on which of these countries the worker comes from, the nursery is expected to meet different immigration requirements to those which apply to general overseas workers.
Highly skilled workers also comprise a separate category of individuals entitled to live and work in the UK. They ordinarily have university qualifications and higher previous earnings and nurseries do not need to have a sponsorship licence to recruit them. Changes have similarly been made in relation to the number of points they can earn as a result of their qualifications, age and salary.
- Q: Are there any other changes I should know about?
Further amendments have been made to facilitate the temporary transfer of nursery workers employed in overseas branches to a UK branch of the same company for training purposes. The circumstances under which a nursery is required to notify the UKBA of any changes to the pay of an overseas worker was also revised on 6 April. The rules are complex and fact-dependant, and nurseries are advised to seek specialist advice in this respect.
- Q: What are the penalties for failing to comply?
Nurseries failing to comply with the immigration rules face fines of up to £10,000 for each illegal worker, including a maximum custodial sentence of two years and an unlimited fine for knowingly employing an illegal migrant worker. Commercially, the nursery's reputation is also likely to be harmed, as the details of all employers that have been fined are published by the UKBA on its website.
Nurseries should therefore make themselves accustomed to the new immigration requirements while ensuring they continue to comply with the pre-April changes, to avoid costly and commercially damaging mistakes.
Immigration is a specialist legal area in which Veale Wasbrough Vizards are able to advise. To discuss how the above changes affect your nursery, please contact Glyn Lloyd on 0117 314 5272 or glloyd@vwv.co.uk
- Robert Collier is a partner at Veale Wasbrough Vizards and heads the Early Years Team. Contact him on 0117 3145472 or rcollier@vwv.co.uk
