Global Mobility & Immigration Counsel : Immigration Lawyer & Attorney : Littler Mendelson Law Firm : Permanent Residence, Labor Certification : Global Mobility & Immigration Counsel

By Andrew Obsorne of Lewis Silkin

New comprehensive guidance published last week by the UK Border Agency clarifies the risks posed by illegal workers to sponsors and to businesses hoping to become sponsors. Having robust HR systems in place to prevent illegal working is more important than ever. This is especially true considering that the UK Border Agency is conducting unprecedented numbers of compliance visits.

The Full Guide for Employers on Preventing Illegal Working in the UK states that a licence will be revoked if you are issued with a £10,000 fine and objection/appeal rights have been exhausted, or you fail to pay/set up an instalment plan for a lesser fine within 29 days of notice of liability, or you breach the conditions of your instalment plan.

The Full Guide also states that applications for sponsor licences will be refused where the fine was £10,000, or there has been a repeat offence, and one of the following applies:

• there is an outstanding fine more than 12 months old;
• there was a fine less than 6 months old that was paid on time; or
• there was a fine less than 12 months old that was not paid on time.

See the guidance here.

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The UK Border Agency recently announced some additional details regarding the cap on number of certificates of sponsorship issued under Tier 2 (General) of the points-based system. Beginning in April 2011, an annual limit will be placed on Tier 2 (General) applications. Moreover, until April 5, 2011, an interim limit on the total number of certificates of sponsorship that sponsors can issue under Tier 2 (General) is in effect: 10,382 certificates (including initial and extension applications). Included in the interim limit are certificates already allocated to sponsors. However, a small number of certificates have been set aside and sponsors may be allocated additional certificates if they are:

• an existing sponsor and exceptional circumstances exist; or
• a new sponsor.

The following types of Tier 2 applications are not included in the interim limit: intra-company transfers; ministers of religion; and sportspersons.

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On December 17, 2010, the UK High Court held that the Home Office’s temporary cap on the number of non-EU citizen skilled workers allowed entry to the UK was introduced unlawfully. As reported by the BBC, the High Court found that ministers had “sidestepped” Parliamentary scrutiny by implementing the measure without a vote. Due to this ruling, the temporary cap for two tiers of job applicants—which was intended to stay in place until the permanent cap takes effect in April 2011—is no longer in effect.

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The UK Border Agency announced that on July 19, 2010, it will introduce an interim limit on the number of sponsorship certificates employers can issue to migrant workers. An annual limit will be introduced in April 2011.

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The UK Border Agency confirmed that, beginning October 5, 2009, Tier 4 education sponsors can enter phase 3, a voluntary trial period under the UK’s points-based immigration system. During the trial period, sponsors are permitted to issue potential students visa letters while transitioning to using the sponsorship system to issue confirmations of acceptance for studies.

From October 5, 2009, to February 2010, sponsors can issue confirmations, visa letters, or both to potential students applying from within the United Kingdom. Applicants from outside the United Kingdom will still have to apply with a visa letter until February 2010.

Confirmations of acceptance for studies will become mandatory in February 2010.

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The Australia Government’s Department of Immigration and Citizenship has announced changes to its Subclass 457 employer sponsorship program. Effective May 15, 2009, Australian Standard Classification of Occupations (ASCO) major groups 5 to 7 no longer can be nominated under the Subclass 457 Standard Business Sponsorship (SBS) arrangements. If an employer is interested in employing a temporary overseas worker in ASCO groups 5 to 7, the employer may seek to enter into a labor agreement. Further details about the changes are available on the department’s webpage entitled “Frequently Asked Questions about changes to Subclass 457 program – Change to pathways for ASCO 5-7 Occupations.”

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Beginning in early August, Bahrain will implement a new labor law that will end the employer sponsorship system and permit foreign workers to change jobs without their employer’s consent. As reported in The National, the law was adopted following three years of consideration and is the first of its kind in the Gulf region.

The law is designed help end to the practice of some Bahraini employers that sponsor several—and sometimes hundreds of—foreign workers and charge them a “visa fee” to work with another employer. The workers, mostly from the Indian subcontinent, are not allowed to change jobs without their sponsor’s permission. Once the law takes effect, an employer will be able to terminate an employee’s contract and deport him or her with one month’s notice, and an employee will be able to leave his or her job after giving three months’ notice to the employer.

The law also is intended to help decrease the number of foreigners entering Bahrain to work. Currently there are more than 500,000 expatriates in the country, which accounts for about half of Bahrain’s population. The government also is considering a cap on the number of foreigners who enter Bahrain and expects to resolve by the question by the end of 2009.
 

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Due to planning levels being achieved, some occupations have been removed from the Permanent Sponsorship and Provisional Sponsorship lists of the South Australian sponsored visa program, the Australian Visa Bureau reports. One occupation (hairdresser) was removed from the Permanent Sponsorship list, and several occupations (including construction project manager, statistician, health information manager, social professional, hairdresser and various scientist positions) were removed from the Provisional Sponsorship list. These amendments follow the Australian federal government’s recent changes to the General Skilled Migration Program, which reduced the number of occupations listed on the Critical Skills List.

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Under the United Kingdom’s new Employer Sponsorship system (in place since November 27, 2008), employers must register for a license in order to employ non-European Economic Area migrants. The UK Border Agency announced that 4,875 employers in the UK have registered as sponsors as of January 5, 2009.

According to the Border Agency, the new system:

• ensures only those skilled migrant workers who are needed can enter the UK;
• introduces tough criteria requiring employers to prove a resident worker doesn't want the job before offering it to a foreign worker; and
• is flexible, meaning that the bar can be raised or lowered according to the needs of the labor market and the country as a whole.

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