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Blog: Hiring migrant workers is now a boardroom issue...

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14th Dec 2012
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The revocation of London Metropolitan University’s student licence this summer shook the Higher Education sector.

Although the financial fallout for the university is still yet to be quantified, it is anticipated that the loss of hundreds of international students, coupled with the damage to the university’s reputation, will translate into a massive dent in revenue.

Not surprisingly, it has led to a more general increase in anxiety for all licence holders, not only relating to students, but also amongst employers holding Tier 2 licences to sponsor migrant workers. This is particularly so since it is clear that the UK Border Agency is placing an ever increasing amount of focus on compliance.  If you are currently working in HR and find yourself responsible for immigration compliance, including the up-keep of your company’s sponsor licence, then there has never been a more pressing time to get the subject on the boardroom agenda. Failure to do so could lead to major implications for the company financially and reputationally should you suffer the same fate as London Met and have your licence revoked. So what are the key issues that should be keeping senior management awake at night?   Compliance no longer simply means visas  Immigration compliance unfortunately no longer simply means getting the right visas to enable your overseas migrants to work legally in the UK. The introduction of the Points-Based System back in 2008 has meant that in addition, the onus to track and report on migrant activity now falls squarely to the employer.  Under the UKBA’s so-called ‘5 Areas of HR’ there are numerous requirements for employers to obtain and maintain detailed and accurate records relating to their migrant workers. Failure to do so can result in civil penalties of up to £10,000 per illegal worker and criminal penalties which include up to two years imprisonment.  However, there are two other key areas of the business that need to be firmly up to speed compliance in this area that often drop off the circulation list…   Recruitment  Anybody already involved in issuing certificates of sponsorship to migrant workers will no doubt be familiar with the requirements of the Resident Labour Market Test, but have the strict requirements relating to advertising filtered down to your recruitment and resourcing teams?  Perhaps more importantly, if your recruitment activity is outsourced, are you working with your third party partners to ensure that they understand and work with you to meet the requirements?  For example, are they aware that in most instances, adverts must be placed with Jobcentre Plus if they are to be used at some point in the future to support the hiring of a migrant worker?  Or, are they aware that for the same reasons, records must be kept relating to the advertising, including copies of the adverts themselves and records relating to the number of resident and non-resident candidates applying?  If not, this could prevent the company from being able to obtain work permission for a suitable migrant worker and/or lead to issues for the company’s licence if it is picked up at a UKBA audit that such records have not been maintained.   Mergers & acquisitions  Perhaps an even more obscure requirement is the fact that the UKBA will want to hear about any M&A activity within your business, potentially both in the UK and overseas. Failure to report such activity could again lead to the suspension or revocation of your licence and the obvious fallout that will ensue.  Essentially, any M&A activity in the UK resulting in the transfer of staff under TUPE places a requirement upon you to undertake ‘right to work’ checks on those employees transferred across within 28 days. If the entity that you are acquiring already holds a sponsor licence then a decision will need to be taken as to whether that part of the business should retain the licence, or whether it should be surrendered and for that part of the business to be added to the company’s existing licence. The situation becomes even more complex where partial takeovers or de-mergers are involved.  For activity taking place overseas, this could again have an impact on your licence if it is not reported to the UKBA but you intend to transfer migrants from the newly acquired business overseas into the UK. But are your M&A teams aware of this?   All eyes on…who?  Given that it is quite possible that the Authorising Officer for the company’s licence will be sat in that board meeting, they will not want all eyes to be focused on them should there be a risk to the licence due to any of the above.  However, the only way to avoid this is to ensure that the matter is whole-heartedly escalated up and across the organisation. The view that immigration compliance is a simple HR issue is a long-gone fallacy and it is undoubtedly time that the matter is understood and taken seriously at the highest corporate levels.  

Alison Hutton is senior immigration consultant at specialist immigration law firm, Newland Chase.

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