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Effectively Mitigating Tier 2 Immigration Risks

For most employers, recruiting global talents is to key to retaining that competitive edge in their respective industries. However, they face increasing immigration risks when recruiting migrants from outside the UK. In the third quarter of last year alone, the UKBA issued around £10.2 million in fines to employers in connection to employing illegal workers.

Importantly, 90% of those fines are totally avoidable. The penalties for recruiting illegal workers as well as failing compliance checks are considerable and best avoided.

Fundamentally, best practice recruitment involve creating a system that allows you to attract and retain the best candidate for a role. Where such an individual is not in the UK, the best solution for you may be to turn to the global market.

This has become a recurring theme in certain key industries like health, social care, construction, agriculture, etc., where domestic labour shortage evidently offer no solution to the skill shortage. The global market in this case, remains a better solution.

It is therefore important that as an employer you are aware of the risks that result when you hire a visa requiring employee. At every point in the recruitment process, the employer is faced with compliance risks.

  1. At the point employer determine that they need to hire a new worker

This point relates to genuine vacancy. Notably, a number of employers had abused the sponsor licence privilege by simply employing vulnerable migrants just to abuse them. Or recruiting friends or family members just to help stay in the UK. This threat to immigration control is something the Home Office strictly watches out for. Getting it wrong at this stage is just one step closer to failure of both current and future applications.

The Home Office must be satisfied that the role in which you want to sponsor a migrant for is a genuine one.

  1. At the point of advertising the job

This points relates to the RLMT - Resident Labour Market test. Apart from jobs on the shortage occupation list and Tier 4 migrants switching into Tier 2, employers must demonstrate that they have given the UK labour market a fair chance before looking abroad. To that end the UVVI require that the job role be advertised for a minimum of 28 days.

Through the details of the job advert, employers must show that the job that they are recruiting for is a sponsorable one. A job may be sponsorable if it is a skilled role that is at or above level 6. The job advert must be placed in at least two of the following places: -

  • National newspaper
  • Professional journal
  • University milkround
  • Rolling recruitment campaigns
  • Recruitment agencies and head-hunters
  • Internet

It is important to keep proof of the posting and closing date. We recommend that the opening and closing date should be included in the body of the advert.

How to make sure that your advert is compliant

To ensure that your advert is compliant, the following must evident on the advert: -

  • Job title
  • Location of the job
  • Indication of salary package
  • Main duties and responsibilities
  • Requirements
  • Posting / Closing dates

It is important that the job description show that the job is a skilled one.

The following categories of persons are exempt from an RLMT:-

Persons whose salary offer is above £155,300

Current Tier 2 visa holders extending their leave under the same job and with the same employer

Jobs listed on the Shortage occupation list. Where the working hours is above 30 hours a week.

  1. The Interview process

The interview process must be conducted in a manner that avoid discrimination. Also the employer cannot make assumptions about the interviewee's right to work on the basis of their ethnicity, accent, skin colour or length of time they have been in the country.

In addition, whilst the UK remains part of the EU, employers must also give applications from the EU equal weighting to applications by Britons.

  1. Right to work checks

An employer is not permitted to employ an individual who has no valid right to work in the UK. Employers must take reasonable steps to ensure that they not only check rights to work at the point of recruitment, but also set up a reminder to remind them of when next to ask carry out right to work checks. This should be few weeks before the right to work document expires.

At that point, the employee must either have an application lodged with the home office or must have obtained another right to work.

Your duties as an employer are as follows: -

  • Check and keep copies of original, 'acceptable' documents before someone starts working for you;
  • Carry out repeat checks at least once every 12 months if a person has a time limit on their stay; and
  • Not employ a person in breach of any restrictions such as type of work or the amount of hours they can work.

Please note that the above checks must apply to all employees. Picking out individuals based on nationality may be grounds for discrimination.

How we can help

At Reiss Edwards, we have a team of expert corporate immigration lawyers with over 40 years' experience in assisting companies with Tier 2 visa applications as well as compliance and training for HR managers and in house teams.

Please contact us today if you need someone to conduct an immigration audit of your firm and then advice on necessary measures to put in place to ensure you remain compliant. We can also help with your Tier 2 and sponsor licence applications.

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