UK: Immigration Update

From 1 April 2004, the Home Office introduced a special application form (an FLR(IED)) and a fee of £121 for all 'in-country' leave to remain decisions. This will affect holders of Immigration Employment Documents (IED's) and their dependents.

IED's includes all people in the UK under the following immigration categories:-Work Permits, Highly Skilled Migrants Programme (HSMP), Training and Work Experience (TWES) permits and the Sectors Based Schemes. It also includes people who are eligible to switch from another category (e.g. Student or Working Holidaymaker) into the IED status.

In practice a two stage process will need to be followed:-

a. an application for an IED to employ or continue employing someone already in the UK, followed by;

b. an application for Further Leave to Remain using the new FLR (IED) form.

We are awaiting clarification from the Home Office in relation to the status of a worker pending the FLR decision. Current guidance states that "you need to ensure that the person you wish to employ has both an approved IED and limited Leave to Remain permission before they start, or continue to work".

The application fee, would normally be paid by the overseas national ('OSN') rather than the employer, although it is acceptable for the employer to pay it by private agreement. There is no additional charge for any dependents included on the application although if they have been omitted, then a separate application would need to be made, attracting an additional fee. Nationals of the 10 EU accession countries and Bulgaria, Moldova, Romania and Turkey are exempt from the fee.

On 1 May 2004 ten countries joined the European Union and also became part of the EEA. The countries who joined are:

Nationals of these countries will be free to come and work in the United Kingdom from 1 May 2004. However, nationals from all except Cyprus and Malta will be required to register with the new Workers Registration Scheme, which will monitor the impact on the UK labour market.

If required, an employer is responsible for ensuring registration by an OSN as soon as employment begins after 1 May 2004. If you are already employing a national from one of these countries legally, then they will not be required to register.

If the registration process has been successful, the Home Office will send the OSN a registration certificate with a copy to the employer as evidence of legal employment. If an OSN does not register with the Home Office within one month of commencing work then an Employer may be guilty of committing a criminal offence under new legislation. If convicted, the maximum penalty on an employer will be a £5,000 fine.

Other new regulations that also came into force on 1 May are part of a comprehensive, cross-Government approach to tackling illegal working. From this date, changes to the law will come into effect that will make it easier for the Government to prosecute companies who employ illegal workers. However the changes are also designed to make it easier for legitimate business to keep within the law.

When announcing these changes, the Home Secretary, David Blunkett, stated that the aims are as follows:

• to make it harder for people who do not have permission to work to get jobs using fake documents;
• to make it easier for employers to check that the individuals they wish to employ are legally permitted to work;
• to make it easier for the immigration authorities to take action against employers who deliberately employ illegal workers;

The changes acknowledge the variation in the security features of different documents, and they are placed on one of two lists:

1. Secure documents are on the first list and can be accepted by employers on a standalone basis. These include passports, ID cards and other travel documents.
2. Not everyone has been issued with such documents, including many British citizens. In light of this, employers can accept a combination of specified documents contained in the second list. For example, a full British birth certificate produced alongside a document giving the person's National Insurance number.

Employers must take reasonable steps to ensure that documents produced relate to the applicant in question i.e. where a document contains a photograph, being satisfied that the applicant is the person in the photograph, and if the document contains a date of birth, being satisfied that it is consistent with the apparent age of the person.