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How to avoid the pitfalls when employing migrant workers | Immigration Matters

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Hardly a day goes by without a report of a restaurant, agency or factory fined £10000 for employing an illegal worker.

Earlier this year the owner of three Indian restaurants in Cumbria was jailed for two years for employing illegal immigrants.

The government has sent out a clear message that businesses employing non-EU migrant workers must do so legally within the published Immigration Rules. The guidance is published on the Home Office website, everybody knows the penalties for breaking the rules, so in theory everything should be straightforward.

Then why are thousands companies falling foul of the law and being hit with fines? 

There are obviously a minority of UK employers who knowingly employ migrant workers illegally, but in my experience of carrying out file audits, most employers have no desire to break law and are simply ignorant of or confused by the mass of rules and regulations. 

Whilst most people are aware that a foreign national needs permission, for instance a Work Permit, to work (or study) in the UK there are a number of different types of permission and visa: 

  • Work Permit
  • Tier 2 (points based system working visa)
  • Tier 1 (formerly HSMP)
  • Post Study Work Visa (graduate schemes)
  • Intra Company
  • Working Holiday
  • Student Visa (pre-Tier 4)
  • Tier 4 Student Visa
  • Domestic Worker Visa
  • Dependant Visa

In addition to the above list there are migrants who have been granted asylum, Limited Leave to Remain, Indefinite Leave to Remain or have European passports. 

The Points Based System (PBS) was designed to simplify the immigration system and, in the words of Ministers, ‘bring 80 different routes into the UK under one five tier system’. But there are still many thousands of people in the UK under pre-PBS rules, some of whom want to switch category or extend their stay. 

Whilst we cannot cover every scenario in one article, there are three particular immigration categories where employers frequently slip up:

  • Students
  • Dependants
  • EU workers

Students

Around 300000 international students came to study in the UK last year making it the second most popular destination after the US.

Non-EU students presenting a student visa to an employer could be allowed to work up to 10 hours per week, 20 hours per week, full time or not allowed to work at all. The visa (pre-Tier 4 or Tier 4) stamp does not always specify exactly how many hours a student may work.

There is also the sticky question of whether or not the student is actually in full time study, or attending any classes at all.

With so many private colleges being suspended or closing down, hundreds of students are running around trying to find new colleges or have simply stopped studying and are working out their visa term. If they are not studying they are not in the UK legally. 

More worryingly, students renewing their visas/leave to remain with private colleges (whether they are highly, lowly or not trusted!) after 4 July 2011 will no longer be allowed to work at all or sponsor their dependants.

In fact only students (applying or renewing visas after 4 July) who are studying at post graduate level or above at a government university will be allowed to work and sponsor a dependant.

Employers should at very least regularly check that visas are still current and that the student is studying for at least 15 hours per week or risk a £5000 fine

Dependants 

This is another potential minefield for employers and almost impossible to monitor. The visa of a dependant of a migrant worker or student is normally allowed to work full time – as long as they are still with the main visa holder. If the couple part ways then technically the visa of dependant is no longer valid. The same applies id the main visa becomes invalid for any reason.

The difficulty for an employer is knowing if and when a dependant worker has split up with his or her sponsor.

Sometimes the main visa holder will report the break up to the UK Border Agency, which can take months to filter through to action, but in most cases they simply refuse to include the dependant on the next visa renewal.

In one recent incident a Filipino dependant worker who had split from his wife carried on working without informing his employer. The matter only came to light when one of his co-workers reported him directly to the UK Border Agency (UKBA).

The employer only found out about the dependant worker’s predicament when the local UKBA team contacted them and threatened to slap a £5000 civil penalty on the company!

Employers must carry out regular audits on all migrant workers and their dependants to ensure they are compliant and legal.

EU Workers

This should be the most straightforward category of all because all citizens of the European Union have the same rights, don’t they? Well, actually no, not all EU members have the same rights to work in the UK.

A common misconception by British employers is that all members of the European Union have the same rights to work here. Wrong. Not all EU members have the right to freely work in the UK.

As members of the European Union, Bulgarians and Romanians have ‘visa-free’ access to enter the UK, however, they do not enjoy the same rights to work as the earlier ‘A8’ Eastern European EU accession countries such as Poland, Slovakia and Latvia.

Cynthia Barker of Bison UK Immigration Advisers has come across a lot of confusion when it comes to EU workers. She said:

‘Employers overlook the fact that they cannot employ a Romanian or Bulgarian worker in the same way they can a Polish or other A8 accession country citizen.

‘One employer told me that he thought it was alright to employ a Romanian waitress in his restaurant because she was ‘European and had a National Insurance (NI) number and tax reference’.

‘But possession of an NI number does not mean a person has the right to work in the UK and is not a ‘statutory defence’ for an employer facing charges or a fine for illegal employment.’

Many Romanians and Bulgarians register as self employed and start businesses, which is allowed, or work and study on a Yellow Card Visa.

However, a self employed yellow card is meant for those who are genuinely running a business providing goods or services or, not working as a waiter or chef in one restaurant. 

Employers cannot ‘employ’ a chef, waiter or care worker on a self employed basis or as a contractor (whether or not they are Romanian/British or European) when that person is clearly a full time employee.

Romanian and Bulgarian students taking vocational or sandwich courses, such as NVQ in Health and Social Care, are allowed to work full time, as stated on their Yellow Cards.

For these reasons many Bulgarians and Romanians are switching to the simple study route to obtain a BR1 Yellow Card regsitration because they will learn a useful skill, earn a British qualification and most find it relatively easy to find a work placement as part of their course.

Once they have worked for 12 months they can obtain a Blue Card or permanent residence in the UK.

Bulgarians and Romanians applying for BR1 yellow card registration as students who wish to work are being forced to take out Comprehensive Sickness Insurance – a form of private medical cover – even though they should have access to the NHS.

The insurance is a new requirement introduced by the UK Border Agency as part of changes to the BR1 Yellow Card form in June.

The revised BR1 form does not make it clear that a student will need Comprehensive Sickness Insurance, as the actual question relates to those applying as ‘self sufficient’ EU applicants.

Finally, the vast majority of employers are law abiding and have no wish to flout the law. To protect your business you need to ensure that you can demonstrate that you have carried out the proper checks on migrant workers and kept a record of documents. 

Despite high UK unemployment healthcare support workers or care assistants are still desperately needed by employers who cannot fill vacancies locally. With millions of British people unemployed and the country’s economy in the doldrums, in theory the care industry should have no problems in finding care or support workers for the 20,000 plus homes. 

Cynthia Barker is an OISC registered immigration adviser with Bison Management UK specializing in work and study related visas as well as a file checking audit service for employers. For a free consultation call her on 0208 905 1822.

See article:

UK Border Agency launch new website

The newly revised UK Border Agency website has a better look and feel and navigation seems faster, but previously published links to specific pages of the site may no longer exist.

For instance, the link for European Workers is now:

http://www.ukba.homeoffice.gov.uk/eucitizens/bulgaria-romania/work-permits/applying/

The link for ‘Bulgarian and Romanian nationals‘ is:

http://www.ukba.homeoffice.gov.uk/eucitizens/bulgaria-romania/work-permits/

The UK Border Agency and Home Office website contains a vast amount of information which can be difficult to wade your way through the guidance and Immigration Rules.

The navigation section for European workers from Bulgaria and Romania also appears to have been simplified although finding specific information is still a challenge.

Confusion remains over the need for Bulgarians and Romanians applying for  BR1 Yellow Cards as students to take out Comprehensive Sickness Insurance cover. 

The BR1 Form in Section 9 states:

‘If sections 4 (Students) and 5 (Self-sufficient) have been completed: evidence of ‘Comprehensive Sickness Insurance’ cover in the UK and funds to show you are economically self-sufficient, e.g. a bank statement.’

In other words, the paragraph means you need comprehensive sickness insurance only if you are applying under both ‘student’ and ‘self sufficient’ sections.

Nevertheless, student applicants are being asked to take out private medical insurance policies and are being refused if they fail to supply the correct cover.

What is the correct insurance cover?

One insurance company manager told Immigration Matters that he has been trying to get clarification on the exact requirements from the UK Border Agency for several weeks.

Active Quote offers an easy to use online quotation and application system, but also has telephone support from advisers who are on hand to answer questions.

What is Comprehensive Sickness Insurance? 

The UKBA help desk, Bulgarian and Romanian section, was not specific but said that comprehensive cover means you are covered against most eventualities including in and out patient treatment.  

In other words a budget policy is probably not going to be sufficient, although many applicants have no doubt managed to obtain a yellow card using such a policy. 

The Home Office Guidance for Bulgarian and Romanian section caseworkers (ANNEX A) states:

‘Assessing whether an EEA national who claims to be a student or self sufficient person holds Comprehensive Sickness Insurance  

A. Acceptable evidence of CSI  

  • From 20th June 2011 applications from EEA nationals applying for documentation confirming their right to reside in the UK as a student or self-sufficient person must show that they have one of the following forms of evidence in order to demonstrate comprehensive sickness insurance:  
  • A comprehensive insurance policy document confirming that the applicant has private medical insurance. A proportionate approach should be taken when considering what is ‘comprehensive’. For example, a policy may contain certain exemptions but if the applicant is covered by the policy for medical treatment in the majority of circumstances then this will be sufficient.’

To obtain a quotation for Comprehensive Sickness Insurance visit the Active Quote website 

See article:

 

UK Border Agency launch new website

The newly revised UK Border Agency website has a better look and feel and navigation seems faster, but previously published links to specific pages of the site may no longer exist.

For instance, the link for European Workers is now:

http://www.ukba.homeoffice.gov.uk/eucitizens/bulgaria-romania/work-permits/applying/

The link for ‘Bulgarian and Romanian nationals‘ is:

http://www.ukba.homeoffice.gov.uk/eucitizens/bulgaria-romania/work-permits/

The UK Border Agency and Home Office website contains a vast amount of information which can be difficult to wade your way through the guidance and Immigration Rules.

The navigation section for European workers from Bulgaria and Romania also appears to have been simplified although finding specific information is still a challenge.

Confusion remains over the need for Bulgarians and Romanians applying for BR1 Yellow Cards as students to take out Comprehensive Sickness Insurance cover. 

The BR1 Form in Section 9 states:

‘If sections 4 (Students) and 5 (Self-sufficient) have been completed: evidence of ‘Comprehensive Sickness Insurance’ cover in the UK and funds to show you are economically self-sufficient, e.g. a bank statement.’

In other words, the paragraph means you need comprehensive sickness insurance only if you are applying under both ‘student’ and ‘self sufficient’ sections.

Nevertheless, student applicants are being asked to take out private medical insurance policies and are being refused if they fail to supply the correct cover.

What is the correct insurance cover?

One insurance company manager told Immigration Matters that he has been trying to get clarification on the exact requirements from the UK Border Agency for several weeks.

Active Quote offers an easy to use online quotation and application system, but also has telephone support from advisers who are on hand to answer questions.

To obtain a quotation for Comprehensive Sickness Insurance visit the Active Quote website

See also:

Healthcare workers needed now

Comprehensive Sickness Insurance now required for Bulgarian and Romanian study work yellow cards

Illegal worker arrested in UKBA raid, but employers still confused by rules for Bulgarian and Romanian workers

UK Border Agency arrest 8 non-EU students a day for breaching immigration rules

Indian Restaurant owner jailed for employing illegal immigrants

Immigration Rules for Bulgarian and Romanian nationals 

HOW TO FIND APPLICATION FORMS FOR A ‘YELLOW’ OR ‘BLUE’ CARD REGISTRATION CERTIFICATE ON THE UK BORDER AGENCY WEBSITE

Colleges and Universities discount fees to attract more Tier 4 students

Pre Tier 4 students in the UK under the Immigration Rules that were in place before 31 March 2009

New Tier 4 student visa rules now in force

If you need any immigration advice or help with Sponsorship or Work Permits, Visa, ILR/Settlement, Citizenship, dependant visa or an appeal against a refusal please email: 

info@immigrationmatters.co.uk or visit www.immigrationmatters.co.uk

STILL CONFUSED BY YELLOW CARD RULES?

Free presentations are being run at Bison UK Immigration Advisers for Employers, Romanians and Bulgarians – Monday to Friday, from 11am-12noon and 3-4pm. No need to book, just turn up.

Venue: 16 Shenley Road, Borehamwood, Hertfordshire WD6 1DL. Nearest Train Station: Elstree and Borehamwood Station; Buses from Edgware underground station: 107 and 292. 

Majestic College are offering vocational courses and special packages for EU students. See http://www.majesticcollege.org/ or call Joanna on 0208 207 1020, email info@majesticcollege.org or call in to the college Monday to Friday for a free consultation.

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4 Responses to “How to avoid the pitfalls when employing migrant workers”
Read them below or add one

  1. Day by day the honeymoon peod has over in UK. Immediately ban all sort of vist to UK. 80% students are working illegal in London. Stop you consulate to stop issuing visa of any trade. But they cannot they are earning a good money by refusing and accepting the applicatin.It is absoluetly unfair and cheating the poor poeples. Riots in UK for three days is the open secret to the world.The peoples of most welfare state in at hunger. Police was intentionally nott controlling. Shamful life their,

  2. […] How to avoid the pitfalls when employing migrant workers […]

  3. very useful information for me and every

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