Staying powers

The Government’s initiative to confound illegal workers could prove a hindrance to those who choose to do it legally. Nicola Tiffen reports

Recently, the Government has made several changes to the immigration laws in the hope of achieving its stated goal of ‘managed migration’ into the UK. However, the relevance of these measures is not limited to asylum seekers and will, in fact, impact on most UK employers and their representatives.

Defence against employing illegal workers

The Home Secretary has recently acknowledged that illegal working is widespread across the UK economy. In an attempt to reduce this problem, the Government is proposing to limit the statutory defence available to employers who inadvertently employ individuals who do not have the right to live or work in the UK.

Currently, the Asylum and Immigration Act 1996 provides an employer with a defence to employing an illegal worker if, prior to the employment commencing, the employer obtained evidence of the individual’s right to work. Of course, this defence is only available where the employer had no actual knowledge that the employee was working illegally. The Government publishes, in connection with the act, a list of documents that it accepts as establishing an individual’s right to work in the UK. This list includes such documents as a UK passport, a UK birth certificate or any National Insurance documentation. The Government proposes changing this list because of perceived widespread forgery of documents, the difficulty it has experienced in prosecuting miscreant employers and, of course, its assumption that employers want to ensure that their employees are able to work in the UK legally. For example, should the proposed changes take effect, a National Insurance document on its own will no longer be satisfactory evidence of an individual’s right to work in the UK.

The Government has recently completed its public consultation on the proposed changes to the list and has indicated that it may introduce the necessary amendments to the 1996 Asylum & Immigration Act before the end of the year. Therefore, all UK employers would be well advised to ensure that they obtain satisfactory evidence from all new employees of their right to work in the UK.

Increasing numbers of young Commonwealth nationals?

In late August this year, the Government introduced substantive changes to the ‘working holidaymaker scheme’. This scheme, which has been in place for some years, allows young Commonwealth nationals to live and work in the UK for two years.

However, prior to the recent change, working holidaymakers could not accept employment that was anything other than ‘incidental’ to their holiday in the UK. This legally prevented them from continuing their careers while in the UK, or from working for more than 50 per cent of the duration of their holiday. In addition, an employer could not obtain a work permit so as to continue employing a working holidaymaker beyond the completion of the two-year period.

This all changed on 25 August 2003 when the immigration rules were amended to allow working holidaymakers to continue their careers and also to work for the full two-year period. This change now means that even professional sportspeople can continue their careers while on a working holiday. Furthermore, as long as all the relevant criteria are met, an employer can obtain a work permit to employ a working holidaymaker on a more permanent basis.

Over 40,000 young Commonwealth nationals enter the UK under this scheme each year, providing a readily accessible source of temporary labour. The Government hopes that these changes will increase the numbers and availability of this workforce and, once again, reduce the opportunities for illegal working.

Work permit employees – additional red tape

The Government has recently announced two further changes that will affect work permit employees and their employers.

The first of these is a new visa regime, with the first stage due to come into effect on 13 November 2003. The new regime will require all non-European Economic Area (EEA) nationals to obtain a visa before they travel to the UK. Currently, unless the work permit holder is from a country where its citizens always need to obtain a visa before travelling to the UK, the work permit holder can immediately travel to the UK with their work permit document. The employee’s passport is then stamped, with permission to stay for the length of the permit, when they arrive.

The new regime means that all work permit holders will have to make an application for a visa to their nearest British embassy before travelling. Again, the aim is to reduce the level of illegal working and forgery. However, it will also mean further delay in an employee getting to the UK, especially if they have to travel some distance to get to the nearest British embassy.

In addition, as of 13 November, not all British embassies will have the capacity to grant visas to work permit holders. Therefore, the scheme is being introduced in stages, with the first stage affecting work permit holders from the US, Canada, Japan, Australia, New Zealand, Singapore, Malaysia, South Africa, South Korea and Hong Kong. This means that work permit holders from countries not included in the first stage, such as Argentina, may find themselves unable to obtain a visa before travelling to the UK. Therefore, when they arrive to start work they will be given permission to stay in the UK for only six months, even if their work permit is for five years.

The work permit holder will then have to submit an application to the Home Office for further permission to stay until the completion of their work permit. This could be a problem for employees who cannot part with their passports, or for employers who could have employees standing for hours in a queue at the Home Office.

The new visa regime should not affect employees who are already in the UK. Therefore, some employers may seek to save time and avoid the new visa regime by asking a new employee to enter the UK as a ‘visitor’ before the work permit application is submitted. However, it is technically impossible to switch from having permission to stay in the UK as a ‘visitor’ to having permission to stay as a work permit holder. In addition, it is a breach of the Immigration Rules to enter the UK as a ‘visitor’ with no intention of leaving within six months.

The other change to affect work permit holders and their employers is an additional charge for the consideration of work permit applications where the individual concerned is already in the country. This is to cover the Home Office’s cost in considering whether to grant an individual further permission to stay in the UK once the work permit has been approved. In short, it will cover the Government’s costs in the actual stamping of the employees’ passports. This charge, which is likely to be between £100 and £125, will be in addition to the £95 already charged to consider the work permit side of the application. There will also be a separate form for the employee to complete, which ideally should be submitted with the work permit application. Again, this change will mean additional red tape for employers as well as further expense.

The Home Office has introduced several changes to the immigration law in an attempt to control immigration into the country and the high level of illegal working. Unfortunately, it looks as if these changes will lead to further paperwork and costs for employers and employees. n

Nicola Tiffen is a solicitor in the employment and incentives department at Lewis Silkin