Mitigating the migration?

Of late, issues concerning immigration to the UK have received something of a high profile. Indeed, the recent resignation of immigration minister Beverley Hughes only served to focus peoples' attention on the wider issues, from European Union (EU) enlargement through to the problem of illegal working and failures in the immigration system itself.

In a keynote speech delivered to the Confederation of British Industry (CBI) on 28 April, Prime Minister Tony Blair declared that Britain had reached a "crunch point" on the issue of immigration, and stated that a "top-to-bottom" analysis is underway.

There are implications for employers in all of this. Stung by constant criticisms concerning allegedly lax immigration controls and ineffective policy enforcement, the Government has subsequently announced a crackdown on abuse and stiffer penalties for any employers who break the law.

Enlargement of the EU
The fear of terrorism and organised crime – as well as the early harmonisation of some European immigration law provisions – has also influenced recent changes in immigration procedures for those potential employees coming to work in the UK.

In particular, employers are going to be affected by specific changes such as the aforementioned enlargement of the EU (and free movement of labour), the Restrictions on Employment Order 2004 and the pre-entry clearance requirements that have been devised for work permit holders.

On 1 May, ten new Member States joined the EU – namely Poland, Hungary, Latvia, Lithuania, Estonia, the Czech Republic, Slovakia, Slovenia, Cyprus (but not the Turkish Republic of Northern Cyprus) and Malta. Along with Ireland, Britain has allowed immediate free movement and access to the labour market for Member Nationals of these countries from the first day in May onwards. All of the other existing Member States will use transitional provisions in the Accession Treaty to prevent access for between two and seven years.

In conjunction with the UK's relatively light labour market regulation and status as Europe's favoured destination for immigrants, its stance is likely to attract large numbers in search of work from the new Accession States, almost certainly dwarfing the Government's conservative estimate of 13,000 per year from a population that's approaching 74 million.

For their part, employers will welcome a new legal source of inexpensive labour, and the fact that (from 1 May) nationals from those Member States will not require conventional work permits. However, there's an important difference between employing Member Nationals of most of the new countries and those from existing EU States.

A simplified registration scheme has applied to nationals of most of the Accession States from 1 May, the date when the Accession Immigration and Worker Registration Regulations 2004 came into force.

Cyprus, Malta and the existing Member States are exempt from the Regulations, which themselves contain a number of key features:

• the Worker Registration Scheme (WRS) requires those who work on or after 1 May to apply (within one month of commencing employment) for a 'registration certificate' authorising them to work;

• there's a £50 fee required to "cover administrative costs";

• those employers who employ workers not authorised under the WRS will commit a criminal offence under the Regulations if an employee hasn't applied for a registration certificate within one month of starting his or her employment (indeed, there's a possible £5,000 fine payable per offence, which would be an additional offence to the Asylum and Immigration Act 1996).

Employees have to apply on a form designated WRS, which can be downloaded from the Home Office's work permits web site (www.workingintheuk.gov.uk). Employers should keep a copy of the employee's application, and ensure that they retain his or her Registration Certificate for the duration of that person's employment.

Illegal working: the main issues
Since January 1997, Section 8 of the aforementioned Asylum and Immigration Act 1996 has imposed a criminal penalty of up to £5,000 on employers who employ a person subject to immigration control who doesn't have permission to enter into (and then remain in) that employment.

Under the Act, employers have a statutory defence – in the absence of actual knowledge that an employee is working illegally – if they can prove that the employee produced (and that they have copied and retained the copy of) an original document from a prescribed list indicating the employee's entitlement to take up that employment. The prescribed list of documents is set out in an order under the Act.

On 1 May, the Restrictions on Employment Order 2004 came into force. It replaces the existing Order, refining the list of prescribed documents and how they might be used. This follows on from the risible ineffectiveness of the previous list in preventing abuses and the identification of illegal working.

To date, only a handful of successful prosecutions have been secured, and political pressures to improve the UK's record have now reached immense proportions.

So what are the main features of the new Order? First, the list of prescribed documents is now split into List 1 and List 2. List 1 comprises passports, ID cards and other travel documents that remain acceptable as stand-alone evidence of a person's ability to work in the UK.

List 2 is only relevant if a List 1 document can't be produced. It describes other documents that will now be required to be produced in tandem and in particular combinations. For example, a full British birth certificate is effective as a defence only if produced and copied alongside another document showing a non-temporary National Insurance number.

Some documents which have been the subject of widespread abuses are no longer on the list. These include Standard Acknowledgement Letters for asylum seekers, Construction Industry Scheme cards and 'short form' UK birth certificates. Surprisingly, National Insurance number cards (which have routinely been swapped between illegal employees) are still acceptable documents in List 2. A loophole that needs to be closed.

Full details on Lists 1 and 2, as well as guidance on interpretation, are available under the Employer's Information section of the Home Office's IND web site. Log on at www.ind.homeoffice.gov.uk

The Government has also announced that the £5,000 maximum criminal penalty will be increased to an unlimited amount. This is perhaps unsurprising given the recent publicity surrounding the appalling deaths of the Chinese cockle pickers at Morecambe Bay.

Officers of an employer, and those managers involved in recruitment, are personally criminally liable (in addition to the employer as a corporate body) for offering employment under the Asylum and Immigration Act. Employers should ensure that they have detailed and up-to-date Section 8 compliance procedure information to hand.

Pre-entry clearance requirements
Since January of this year, non-visa national work permit holders whose work permits are issued for more than six months must apply for a mandatory pre-entry clearance visa before coming to the UK. The application has to be made following issue of the work permit at a British Mission (ie a Consulate, Embassy or High Commission for the jurisdiction in which the employee is normally resident) before coming to the UK. A work permit holder arriving without an entry clearance is liable to be refused admission and returned on arrival.

A practical consequence of this is that the work permit process is now automatically extended by up to several days for nationals of many non-visa countries. This situation is compounded by the fact that certain Missions (some of which, including New York, have recently closed their walk-in same day service for issuing entry clearance to work permit holders) now accept only postal or online applications. "Security reasons" are cited, although cynical observers may wonder if the inevitable increase in volume cannot be matched by Foreign and Commonwealth Office budgets and staffing levels.

Employers need to plan ahead, and factor-in to the time involved in the work permit process (which already lasts for one month or more in some cases) a further delay of anything up to several days while a statutory entry clearance is obtained.

Meantime, on 1 April the Home Office also introduced a new In-Country Leave to Remain Form FLR (IED) for both individuals and dependents (where applicable) in the following designated categories: work permits, sector-based schemes, Home Office-approved training and work experience and highly-skilled migrant programmes.

FLR (IED) is completed by the Applicant for Leave to Remain (ie the worker). There's a fee involved, which is waived for EU Association Agreement countries under the 1996 European Social Charter (revised). Employers still have to apply separately under the Work Permit Scheme to employ individuals.

A shift in direction?
Prime Minister Tony Blair peppered his recent speech to the CBI with words and phrases like "abuse", "clamp down", "control" and "action on illegal immigration".

There's a general view that the political fall-out from a perceived laxity in approach to economic migration will result in a far tougher response to abuse (and illegal working in particular). Employers: you've been warned.