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Analysis: Future Challenges for U.S. Businesses Transferring Staff to U.K. Operations
 

By Annabel Mace  2/3/2012
 
 

Transferring staff to the U.K. is likely to become more challenging for multinational employers—not only because of the possibility of further restrictions on the number of visas being issued, but because all sponsors are likely to be subject to compliance checks from the U.K. Border Agency (UKBA) within the next 12 months, which could take place without warning.

There is little that can be done to prevent new visa restrictions, but sponsors should protect their existing foreign workers and their ability to obtain future visas by taking active steps to comply with their sponsor obligations and being fully prepared for the early morning knock at the door.

In 2011, the U.K. Parliament’s Public Accounts Committee (PAC) carried out an investigation into the efficiency of the U.K.’s visa system and issued a report concluding, among other things, that the UKBA should do more to monitor the Tier 2 Intra-Company Transfer visa category so the interests of U.K. resident workers are protected. Additionally, the report discovered that the agency does not have enough control over whether U.K. employers are complying with their sponsor duties, and that the agency does not carry out sufficient sponsor compliance checks.

So what should U.S. businesses do to ensure compliance when transferring staff to the U.K.?

Background and Changes in Pipeline

The U.K. government has pledged to reduce the number of people migrating to the U.K. to “tens of thousands” by 2015. One step in trying to achieve this goal has been to impose an annual cap of 20,700 on certain Tier 2 (general) visas—even though workers with a definite offer of employment in the U.K. currently account for less than 20 percent of total long-term immigration. However, a recently reported rise in total net migration might lead to yet further restrictions on work visas. This is the one area of immigration that the government has the ability to control.

Tier 2 Intra-Company Transfer (ICT) visas, which enable multinational employers to transfer existing staff into their U.K. operations, have remained virtually free from restriction. However, the PAC report indicates that a lack of scrutiny within the system has led to British IT workers (and others) being overlooked for jobs in favor of immigrants who receive lower salaries but were given “allowances” to cover accommodations and living expenses.

Given concerns over unemployment in the current economic climate, the government wants to tackle head-on any allegation that immigration leads to more U.K. workers being unemployed.

The likely outcome of the PAC report is that the ICT visa will continue to exist, but might be subject to an annual quota system. In any event, the practice of giving immigrants lower salaries and allowances to meet minimum remuneration requirements is likely to be prohibited. But, more importantly, the chance of a U.K. sponsor being subject to a compliance check will certainly increase.

Ensuring Compliance

UKBA compliance checks can take place without warning, so it is important for U.K. sponsors to be aware of their obligations when employing staff from overseas. Penalties for employing a worker without correct permission—even if it results from an innocent mistake—include fines of up to 10,000 pounds per illegal employee or $15,440.

A U.K. sponsor found in breach of its obligations could see its sponsor license withdrawn, downgraded or suspended. Withdrawal of a license means having to dismiss all sponsored employees—even those who are legally employed and innocent of any wrongdoing. Knowingly employing illegal workers could result in criminal prosecution—including an unlimited fine and a prison sentence of up to two years. Detailed guidance on how to survive a UKBA compliance check is outside the scope of this article, but the following points are key:

Sponsors must carry out full immigration status checks for all employees prior to their employment, and should maintain an up-to-date spreadsheet with full immigration status details of all employees and whether pre-employment and annual follow-up checks (where applicable) have been carried out.

Visa follow-up checks for those with limited leave to remain in the U.K. employed on or after Feb. 29, 2008, must be carried out at least every 12 months.

Sponsors should have a computerized HR system flagging visa expiration dates, as well as a system in place to monitor absences including sick days, holidays and unauthorized absences, that can be easily accessed and shown to the UKBA on request.

UKBA officers will ask to interview the sponsor’s Level 1 user, who is known as the person with primary responsibility for issuing certificates of sponsorship and complying with sponsor obligations. If the Level 1 user is absent, visiting officers will not always agree to return at a later date and might insist on proceeding with a compliance check with another member of the staff—even if that person has no knowledge of the sponsor’s immigration systems. It is therefore worth appointing more than one Level 1 user (this could be another member of staff or an external legal representative made known to the UKBA) with a full understanding of the sponsor’s immigration systems as well as its record-keeping and reporting duties. 

Full details of these duties can be found on the following on the U.K. Border Agency’s website.

Annabel Mace is a partner and head of Business Immigration at Squire Sanders in the U.K.

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