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Comment: MAC’s recommendations would create administrative burdens for UK employers


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Today’s Migration Advisory Committee recommendations are incredibly significant from a UK employer’s perspective. I can immediately see that a huge number of UK employers are likely to be faced with potentially significant new administrative burdens if the recommendations are implemented.

The vast majority of UK employers have little or nothing to do with the current immigration system because they employ UK and EU workers. Of course, EU workers are not currently subject to UK immigration control. Many employers do perform checks on all employees to ensure that they are not employing a person who does not have permission to work but there is no positive legal obligation on employers to make those checks. (This is unless they are one of the 29,364 businesses, as of today’s date, that currently hold a sponsor licence so as to hire non-EU workers.)

Performing a compliant right to work check provides the employer with a statutory excuse under section 15 of the Immigration, Asylum and Nationality Act 2006, which enables them to defend themselves against a civil penalty of up to £20,000 in the event that the Home Office alleges that an employee does not have permission to work in the UK.

If the government does not offer concessions for EU workers as part of the Brexit negotiations and implements the MAC’s recommendations for work migration post-Brexit, employers are likely to face a number of new, potentially significant, administrative hurdles.

  • EU workers will be subject to immigration control. They will require permission to work in the UK, in the same way as their non-EU counterparts currently do. This therefore means that the risk of civil penalties faced by employers will increase significantly overnight. To counter the increased risk, employers would need to check that EU nationals, along with their non-EU counterparts, have leave to enter or remain that allows them to work and they will need to also keep a record of visa expiry dates and copies of right to work checks they have performed. This is likely to significantly increase the administrative burden on vast numbers of employers.
  • The MAC has also recommended a widening of Tier 2 to include roles at RQF level 3, as opposed to the current RQF level 6 (roughly degree level). This significant widening of the route — the MAC says 142 occupations would become eligible for sponsorship — to include medium skill level roles, combined with the requirement for EU nationals to be sponsored (unless they hold leave in another capacity), will require significant numbers of UK employers to enter the sponsor licence system that have not had to do so before. The MAC has recommended that that system is tweaked but it is unlikely in my view that any such tweaks would significantly reduce the administrative burden on organisations holding a sponsor licence.

Many of the proposals made by the MAC are positive, such as removing the absurd cap on Tier 2. However, these two proposals alone, if implemented, are likely to have a significant effect on UK employers that do not currently engage with the immigration system.

Based on current information published by the government, I am not expecting EU nationals to become subject to UK immigration control until 2021, even in the event of a no-deal. The government has said that EU nationals who are living in the UK before then, including new arrivals, will be able to remain in the UK as they can now. They will be able to make an application under the EU Settled Status Scheme but will not have to do so (if they wish to remain in the UK) until June 2021. The government has outlined various scenarios, none of which indicate that it is considering a significant change in this approach in the event of a no-deal.

Therefore, based on all the information currently available, I am not expecting employers to face civil penalties in relation to EU employees who have not obtained immigration status under domestic law until a yet-to-be-determined date in 2021. Of course, the government could change its position in the event of a no-deal but I believe that is extremely unlikely in view of the various assurances made to date and the sheer work that would be involved in requiring millions of EU nationals to apply under domestic legislation earlier than planned.

For the reasons I explained above, it is currently advisable for all employers to check that their employees have permission to work in the UK because doing so affords a defence against a civil penalty. Sometimes people who unfortunately do not have lawful status in the UK, for example because they have overstayed, may acquire an authentic looking fake document as ‘proof’ of their right to work. As long as the employer has undertaken a check in the manner prescribed by the Home Office, they will avoid a civil penalty even though the person does not have the right to work.


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Nichola Carter

Nichola heads the immigration team at Carter Thomas (www.carterthomas.co.uk). A lawyer with 20 years' experience, she also sits on The Law Society’s Immigration Committee. Nichola's main work relates to advising businesses, universities and schools on sponsor applications and compliance, and individuals seeking to come under the Global Talent, family and other routes . She regularly provides media comment including for the BBC and FT and is happy to be contacted for comment. Nichola tweets from @carternichola and her email is ncarter@carterthomas.co.uk.