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					                                                                                               Schools HR Policies:
                                                                                           Employing Foreign Workers




Employing Foreign Workers

1. Background
               The government is in the process of transforming the UK’s immigration system. During 2009 a
               new points-based system has been introduced which replaced the old work permit scheme.
               Foreign workers (or ‘migrant workers’ as they are sometimes called) from outside the
               European Economic Area (EEA), need to meet specific criteria in order to build enough points
               to be granted permission to work in the UK. They also need to be sponsored by the
               organisation that employs them. This has led to more administration for organisations and
               significantly higher penalties for failing to comply. This guidance note is designed to give an
               overview of the new system and highlight the implications for schools.
               The points-based system is complex. If you are in the process of recruiting a migrant worker or
               currently have a migrant worker employed within the school who will require sponsorship, you
               should seek the advice of your HR Practitioner and refer to the Home Office UK Border
               Agency website.



2. New Arrangements
               Since November 2008, the Trust has held a licence, issued by the Home Office, to sponsor
               new foreign workers or support those already in the UK who want to stay. This licence
               currently covers Trust-based employees and schools.
               The new points-based system has five tiers:

                 •    Tier 1 - Highly skilled workers e.g. scientists and entrepreneurs (no licence required).
                 •    Tier 2 - Skilled workers with a job offer e.g. teachers and engineers.
                 •    Tier 3 - Low skilled workers filling specific temporary labour shortages (suspended).
                 •    Tier 4 – Students (not yet open).
                 •    Tier 5 – Temporary workers and youth mobility (replacing working holidaymakers’
                      visas).




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               Under tier 2, migrants need to have sufficient points. The majority of points are awarded for:

                •     Prospective earnings and qualifications.
                •     Good command of English.
                •     Funds to maintain themselves and dependents for one month.

               Youth Mobility Scheme
               It is likely that schools may also need to employ people working under the Youth Mobility
               Scheme, part of tier 5. It is not possible to apply for a licence to cover this category of migrant
               worker. If the migrant is from a country that Immigration Rules define as a ‘deemed
               sponsorship country’, then their national passport serves as a certificate of sponsorship.
               Countries without deemed sponsorship status will provide their nationals applying for the
               scheme with certificates of sponsorship.

               Highly Skilled Workers
               Migrants applying under tier 1 do not require sponsorship from their employer.
               Unlike sponsored skilled workers in tier 2, they do not need a job offer to apply under the highly
               skilled worker category. They are awarded points based on qualifications, previous earnings,
               United Kingdom experience, age, English language skills, and available maintenance (funds).

               Transitional Arrangements
               Current work permits will remain valid until their expiry date. If a migrant wants to extend their
               leave after November 2008, they will need to do it under tier 2 of the new points system and
               may need to meet new eligibility criteria.



3. Certificates of Sponsorship
               Every migrant worker employed by a school under tier 2 of the points-based system will
               require a certificate of sponsorship – these are unique reference numbers that will enable
               foreign workers to apply for work or stay employed within The Learning Trust. These are valid
               for the period that the migrant worker is initially given leave to remain in the UK. Schools will
               be responsible for paying for and issuing the certificate of sponsorship. If the migrant worker is
               to be employed as a teacher, it may be possible to defer the payment to the DCSF. Your HR
               Practitioner will be able to advise you on this.
               The Home Office will set a limit on the number of certificates of sponsorship The Learning
               Trust can issue. This is loosely based on an estimated number of certificates The Learning
               Trust expects to issue each year.




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               It is the Trust’s and school’s responsibility to ensure that certificates of sponsorship are only
               issued to migrants who, to the best of our knowledge and belief, meet the requirements of the
               tier or category of the points-based system. A designated person within each school will be
               responsible for overseeing migrant workers and providing the information required to create a
               certificate of sponsorship (please see section 8.3, on page 11). Certificates are created using
               an automated service provided by the UK Border Agency called the Sponsorship Management
               System (please see below). Your HR Practitioner is set up on the system and is able to create
               the certificate for you, when you supply the necessary information. Please contact them to ask
               for advice if you want to sponsor a migrant worker as there are particular steps that need to be
               taken.


3.1. Tier 2 – Skilled Workers
               This is the category that teachers from foreign (non EEA) countries will usually be sponsored
               under. Certificates of sponsorship should only be issued to a worker if the school is satisfied
               that they are able to do the specific skilled job in question, which must be of at least S/NVQ
               skill level 3. The school will also need to indicate whether a ‘resident labour market test’ has
               been conducted - this means the job has been advertised to settled workers for a set period (a
               minimum of 2 weeks for salaries of below £40,000 p.a.). Each job has a ‘code of practice’
               listed on the UK Border Agency website indicating where the job should be advertised. Every
               job also has to be advertised through Jobcentre Plus. Please refer to section 8.4 (on page 13)
               for details of how to go about this. Your HR Practitioner will be able to advise you.
               This does not need to be applied if the job appears on the list of shortage occupations. A new
               list has recently been published and secondary maths and science teachers are included,
               however the list is reviewed regularly and its contents are subject to change.


3.2. Agency Workers
               It is important for schools to be assured that the agencies used have robust systems in place in
               terms of pre-employment checks. Each agency should be fully vetted by the school to ensure that
               the appropriate checks are carried out on migrant workers.

               Agencies are only able to supply temporary staff under the new guidelines to clients that have
               a licence.

               Directly Employed Temporary Workers
               Where schools directly recruit temporary migrant workers from outside the EEA to work as
               cleaners or kitchen assistants for example, they are most likely to be covered by the tier 5
               temporary worker category – Youth Mobility Scheme. Please refer to the section above on this
               for more information.




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 3.3. Applicants from EEA countries
                Citizens within the European Economic Area (EEA) and Switzerland have the right to move
                freely within the region and to take employment for which they are eligible without restriction.
                Please see section 8.2 (on page 10) for a list of EEA countries.
                If the applicant is a national of a country that joined the European Union (EU) in 2004 they may
                need to register with the Home Office when they start work. If they are a national of Bulgaria or
                Romania, they may need to apply for permission from the Home Office before they start work.


 3.4. Asylum Seekers
                Asylum seekers must have permission from the Home Office after the application for stay has
                been outstanding for at least six months.
                The asylum seeker will need to produce an application registration card issued by the Home
                Office stating that the holder is permitted to take employment.
                The person can then work until the application and possible appeal has been decided.
                If application for asylum is successful the person can continue to work.



4. Sponsorship Management System
                HR Practitioners have access to the Sponsorship Management System. This is an online tool
               that allows designated users to undertake activities, such as issuing Certificates of
               Sponsorship.
               Section 8.3 (on page 11) provides a list of the documents that your HR Practitioner will require
               if you have been through the resident labour market test (see above) and have decided you
               want to appoint and sponsor a tier 2 migrant worker.
               The school is expected to check that the migrant worker has the appropriate number of points
               under the new system (please use the points calculator on the UK Border Agency Website,
               your HR Practitioner will be able to provide more information if necessary). This includes
               referring them on for an English language test at an approved assessment centre if required
               and checking their financial status. UKBA visiting officers will be checking that employers
               have assigned the appropriate number of points when they conduct their compliance checks.
               The school also needs to report particular information to the UK Border Agency, such as when
               a migrant worker leaves the school (please refer to Reporting Duties below). This may need to
               be reported through the Sponsorship Management System by the relevant HR Practitioner if it
               involves a sponsored migrant.




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5. Penalties
               As a sponsoring employer, The Learning Trust will be rated 1, 2 or 3 according to how robust
               our procedures are. If the Trust/schools fail to monitor/sponsor migrant workers effectively, the
               licence will be revoked and The Learning Trust could face a civil penalty (max fine £10,000 per
               illegal worker) or a criminal penalty (unlimited fines or 2 years imprisonment). A Director has
               been appointed as Authorising Officer. The Authorising Officer takes ultimate responsibility for
               the actions of its authorising office.



6. Duties of the School as a Sponsor
6.1. Record Keeping Duties
               Each school must keep the following records/documents and make them available to Home
               Office officials on request:

                 •    A photocopy or electronic copy of each sponsored migrant’s passport or UK immigration
                      status document, showing evidence of their entitlement to work or study.
               Please see the Comprehensive Guidance for Employers on Preventing Illegal Working
               (http://www.ukba.homeoffice.gov.uk/sitecontent/documents/employersandsponsors/preventingi
               llegalworking/currentguidanceandcodes/comprehensiveguidancefeb08.pdf?view=Binary) for
               details on how to check someone has the right to work in the UK and for sample copies of
               documents which show an ongoing right to work. If you have any doubt about the validity of an
               immigration status document, the UK Border Agency runs an employer checking service. An
               Employer Checking Service Form can be downloaded from their website and faxed back. A
               response is usually received within 5 working days.

                 •    A copy of the appropriate registration/professional accreditation, where required.
                 •    Each sponsored migrant’s contact details i.e. UK residential address, telephone no., and
                      mobile. These must be updated as necessary and kept on a central electronic database.
                 •    Details of other relevant documents e.g. recruitment procedures, may also be requested.
                 •    ID cards for foreign nationals will shortly be introduced. These will hold details of the
                      person’s immigration status and fingerprints. Where the migrant has an ID card,
                      schools are required to keep a copy of it.
               Comprehensive employment records for each migrant, including full employment references,
               copies of qualifications/professional accreditations and the original advert for each position.
               The records must be stored so they are easily accessible. Please refer to the end of this
               document for a list of the exact documents that schools are required to keep in relation to
               migrant workers and the duration that each document must be kept. These include job adverts,
               job descriptions and interview notes.




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               Schools also need to ensure that they:

                •     Monitor the expiry dates of each migrant’s permission to enter and stay e.g. establish and
                      maintain an electronic database/spreadsheet that records the immigration status and the
                      expiry dates of any leave to enter or remain in the UK. Ensure expiry dates are monitored
                      by a designated person and subsequent checks completed and renewed as appropriate.
                •     Allocate an individual staff member to be responsible for monitoring expiry dates and
                      keeping check on when 12-monthly checks are due.
                •     Have a suitable procedure for keeping contact details up to date e.g. advising staff in
                      writing that they need to notify the Office Manager of changes to their contact details or
                      sending out an e-mail periodically to request details of changes.


 6.2. Reporting Duties
               Schools have a duty to report the following information or events to the Home Office, within the
               relevant time limit specified:

                •     If a sponsored migrant does not turn up for their 1st day of work (report submitted
                      within 10 working days with reason for the non-attendance).
                •     If a sponsored migrant is absent for more than 10 working days without our reasonably
                      granted permission (report submitted within 10 working days of the 10th day of
                      absence).
                •     If a sponsored migrant resigns or is dismissed (report submitted within 10 working
                      days of the event, including the name and address of any new known employer or
                      institution the migrant has joined).
                •     If the school stops sponsoring the migrant for any other reason (report produced within
                      10 working days).
                •     Significant changes in the migrant’s circumstances e.g. change of job or salary. Please
                      note that this includes details of any annual pay increases (report within 10 working
                      days).
                •     If the school is suspicious that a migrant is breaching conditions of their leave (report
                      within 10 working days).
                •     A change in organisational circumstances e.g. merger/transfer (report provided within
                      28 working days).
                •     Details of any 3rd party that has assisted in the recruitment of migrant workers.
                •     Provide any information to the police that suggests the migrant may be engaging in
                      terrorism or other criminal activity.
               Where the change involves a sponsored migrant, this will need to be reported via the
               Sponsorship Management System by your HR Practitioner.




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               In addition to the above, each school needs to be able to demonstrate that suitable procedures
               are in place to monitor migrants and report the above circumstances within the time limits
               specified. This will involve ensuring that:

                 •    Each employee’s arrival and departure is recorded and a designated person monitors
                      who has reported for work. The reasons for unauthorised absences should be checked
                      with the relevant line manager and/or the employee in question.
                 •    A designated staff member is responsible for informing the UK Border Agency of any
                      of the reportable circumstances listed above (this may need to be done through your
                      HR Practitioner where it involves a sponsored migrant).
                 •    The school’s absence reporting procedure is carefully followed and the relevant
                      manager is notified when a staff member is absent. Attendance is carefully managed
                      and the individual is contacted if the absence is unauthorised.



7. Compliance Checks
               A visiting officer from the UK Border Agency may carry out checks at any stage. Schools
               should fully comply with these checks and make the requested information available. A visiting
               officer may request to speak to migrant workers, colleagues or managers involved in their
               recruitment. Visiting officers have the right to issue civil penalties or refer cases for
               prosecution.



8. Further Information
               Full guidance on the new points based system and sponsoring a migrant worker can be found
               on the Home Office UK Border Agency website.
               For details on how to check someone has the right to work in the UK and for sample copies of
               documents which show an ongoing right to work, please use the following link:
               http://www.ukba.homeoffice.gov.uk/sitecontent/documents/employersandsponsors/preventingil
               legalworking/currentguidanceandcodes/comprehensiveguidancefeb08.pdf?view=Binary.
               To use the Employer Checking Service, please type Employer Checking Service Form into
               the search box of the UK Border Agency Website. The form can then be printed out,
               completed and faxed back on the number at the bottom of the form.




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 8.1. Documents
               For each migrant employed, the following documents must be kept as paper copies or in an
               electronic format:

                Document                                                                          Duration document must
                                                                                                  be kept for
                Copy of the migrant’s passport, including page(s) showing leave stamps, or        For two years after migrant
                immigration status document. This must show the migrants entitlement to work      is no longer sponsored.
                for you as a sponsor.
                Copy of the migrant’s United Kingdom Biometric Card.                              For two years after migrant
                                                                                                  is no longer sponsored.
                Copy of the migrant’s National Insurance Number, unless the migrant is            For two years after migrant
                exempt from requiring one. For example, where applicable, copy of the             is no longer sponsored.
                migrants NI card, wage slip, P45, P46, P60, P11 (employer’s declaration to
                HMRC), P14 (employers return to HMRC), P35 (employer’s annual return to
                HMRC).
                A history of the migrant’s contact details (United Kingdom residential address,   For the duration the
                telephone number, mobile telephone number). This must be updated                  migrant is sponsored.
                regularly.
                Record of the migrant’s absence (tiers 2 & 5).                                    For the duration the
                                                                                                  migrant is sponsored.
                Copy of any contract of employment between the sponsor and the migrant.           For the duration the
                                                                                                  migrant is sponsored.
                The following documents relating to the recruitment process:                      For the duration the
                  • All expressions of interest received, all applications received, in the       migrant is sponsored.
                    medium they were received. For example, emails, CVs, application form
                    etc. This should include the applicant’s name, address, etc.
                  • The names and number of people who applied.
                  • The names and number of applicants short-listed for interview.
                  • Notes from the interviews conducted.
                  • For each EEA national who applied, reasons why they have not been
                    employed.




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                 Documents Relating to Resident Labour Market Test (Tier 2 and Tier 5)
                 Where the vacancy was advertised in the national newspaper or professional           For the duration the
                 journal, the sponsor must keep a copy of the job advertisement as it appeared        migrant is sponsored.
                 in the given medium. The copy should clearly show the title of the publication
                 and the date(s) and/or where applicable a copy of the letter or invoice to prove
                 an advertisement was placed. (Invoice is only required where the
                 advertisement does not show the name of the organisation).
                 Where the vacancy was advertised on the web, the sponsor should keep 1 or            For the duration the
                 2 weeks of screen prints clearly showing where job was advertised, the               migrant is sponsored.
                 contents of the advert, the date and the URL and/or where applicable copy of
                 the letter or invoice to prove an advertisement was placed.
                 Where the vacancy was advertised on the company’s own website the                    For the duration the
                 sponsor should keep 1 or 2 weeks of screen prints clearly showing where job          migrant is sponsored.
                 was advertised, the contents of the advert, the date and the URL.

                 Where a job has been advertised in Jobcentre Plus, a copy of the Jobcentre           For the duration the
                 Plus letter confirming details of the contents of the advertisement, dates           migrant is sponsored.
                 placed and vacancy reference number is required.

                 Where head-hunters were used for the recruitment, a copy of the contract             For the duration the
                 between the head-hunter and sponsoring organisation is required and/or a             migrant is sponsored.
                 copy of the brief and/or or copy of the report produced, copy of the invoice,
                 copies of any adverts placed. The copy should clearly show the title of the
                 publication and the date(s) and a copy of the advert as it appeared.
                 For milk rounds, a letter from each university is required – on their headed         For the duration the
                 paper – confirming the milk round, dates it was conducted and method used,           migrant is sponsored.
                 for example, presentation and/or interview method.

                 If the recruitment was done using a recruitment agency, a copy of the contract       For the duration the
                 between the recruitment agency and sponsoring organisation is required, plus         migrant is sponsored.
                 a copy of the invoice, copies of any adverts placed - the copy should clearly
                 show the title of the publication and the date(s) and a copy of the advert as it
                 appeared.
                 Where the migrant is switching from the Tier 1: Post study category, the             For the duration the
                 sponsor will be asked to provide evidence that the migrant had been working          migrant is sponsored.
                 at the company for at least the last 6 months prior to application. For example,
                 payslips or company accounts that clearly show a wage being paid to that
                 specific migrant. Accounts that show only ‘wages for personnel’ but not
                 specifically that migrant by name or other unique identifier are not considered
                 acceptable. Payslips must be formal payslips or on company-headed paper. If
                 the payslips are not on headed company paper, or the company only uses
                 online payslips, the company must provide a signature and stamp on a print-
                 out to authenticate the evidence.




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 8.2. List of EEA countries
               The following countries are in the European Economic Area:
               Austria
               Belgium
               Bulgaria
               Cyprus
               Czech Republic
               Denmark
               Estonia
               Finland
               France
               Germany
               Greece
               Hungary
               Iceland
               Republic of Ireland
               Italy
               Latvia
               Liechtenstein
               Lithuania
               Luxembourg
               Malta
               The Netherlands
               Norway
               Poland
               Portugal
               Romania
               Slovakia
               Slovenia
               Spain
               Sweden
               UK

                Note: While Switzerland is not in the EEA, Swiss nationals have the same rights as EEA
                      nationals.




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8.3. Information required from schools to enable HR Practitioners to
     assign a Certificate of Sponsorship for a migrant worker
               If you work in a school and have recruited a migrant worker who requires sponsorship by their
               employer, your HR Practitioner will assist you by creating a Certificate of Sponsorship for the
               individual on the sponsorship management system. In order for them to do this, they will
               require specific information about the individual and the recruitment process.
               Your HR Practitioner will ask to see:

                    •    The original passport with relevant stamps indicating the right to work/stay in the UK
                         and any additional immigration letters.

                    •    A print-out of the on-line points based calculator result, proving that the migrant worker
                         has sufficient points under tier 2 to be sponsored
                         (http://www.bia.homeoffice.gov.uk/pointscalculator).

                    •    Where the Resident Labour Market Test is required:

                    •    The job advertisements - this will include adverts from any professional
                         publications/websites listed in the relevant UKBA Code of Practice and the Jobcentre
                         Plus advert (which is now required for every post where a migrant worker is recruited,
                         see appendix A). Details of the time period the post was advertised for will also be
                         required.

                    •    Written documents relating to the short-listing/interview process, demonstrating that no
                         settled workers were suitable for the post.
               The following details are required to assign the Certificate of Sponsorship through the
               sponsorship management system:
               Personal Information of Migrant Worker

                    •    Name

                    •    Nationality

                    •    Place of Birth

                    •    Country of Birth

                    •    Date of Birth

                    •    Gender

                    •    Country of Residence

                    •    Home address

                    •    Passport details (number/issue date/expiry date/place of issue)




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               If relevant:

                      •   UK ID card number

                      •   UK NI number

                      •   National ID card number
               Work details

                      •   Start/end date of employment

                      •   Does the migrant have multi-entry?

                      •   Main work address/other regular work addresses

                      •   Agent details (where migrant has been sourced through a recruitment agency)
               Migrant’s employment

                      •   Job title

                      •   Job type

                      •   Brief job description (e.g. secondary English teacher)

                      •   Gross pay

                      •   Details of any additional allowances
               Other information

               You are asked to tick to confirm whether;

                      •   The job is at N/SVQ level 3 or above

                      •   The job is on the shortage occupation list (i.e. a secondary maths/science teacher)

                      •   You have met the resident labour market test - Details of the resident labour market
                          test are required, including where and when the post was advertised.

                      •   There are any registration details if there is a legal requirement for the migrant to be
                          registered with a professional UK organisation.
               Payment Details

               The HR practitioner will also require the credit card details of the school in order to raise the
               payment and complete the process. Each certificate currently costs £170. Cheques are also
               acceptable but paying by cheque creates considerable delay in assigning the Certificate of
               Sponsorship.
               There may be the option of deferring payment of teacher’s Certificates of Sponsorship to the
               DCSF.




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8.4. How to register a vacancy with Jobcentre Plus
           Online
           Create, view and update your jobs yourself through Employer Direct online, giving you control of
           your vacancies anytime that suits you.
           E-mail your vacancies at any time to
           employerdirect-vacancies@jobcentreplus.gsi.gov.uk.
           Over the phone
           Register a vacancy over the telephone on 0845 601 2001. A textphone service is available for
           people with speech or hearing impairments on 0845 601 2002 or fax them on 0845 601 2004.




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