Points on the board
Pay Magazine, October 2007
Retrospective changes to the points system for highly skilled migrant workers could result in legal workers becoming illegal immigrants. Cath Janes reports
Mention the word ‘immigration’ to most Brits and you’ll spark one heated debate. However, mention the word to British employers and you’ll get one big roll of the eyes. Once again, as the UK-wide debate rages on, it is employers who are picking up the pieces.
Thank the Highly Skilled Migrant Programme (HSMP) and the scathing criticism it has recently managed to attract for that. By now most employers are, or should be, aware of the HSMP, a government-led scheme that awards points to skilled migrants, encouraging them to find employment in the UK. Its purpose? To boost the British economy and plug the skills gap that leaves many employers high and dry when filling vacancies.
So far, so good. So why the criticism? Well, that’s down to the government’s tightening of the HSMP criteria back in 2006. This meant changing the rules allowing highly skilled migrants into the country and applying them retrospectively. So, points previously given to migrants for work experience or career progress were no longer awarded and the previous period-of-residence rule of four years was extended to five. The result was that an estimated 49,000 highly skilled migrants suddenly found themselves working illegally. And that’s why the Lords and Commons Joint Committee on Human Rights has recently declared the retrospective application of these amendments to be “a case of moving the goalposts,” condemning them for “cheating on the deal through which people have legitimately made decisions over their life here in the UK.”
An unfair change
Tony Bourne, senior partner at Glovers Solicitors, agrees. “Migrants made a commitment in accordance with the HSMP,” he says, “and the changes to the rules mean that it is now impossible or difficult for them to stay in the country even though they have done everything by the book. These people make a significant contribution to this country and this really is unfair.”
However, it’s not just fairness that has brought this issue to the fore. For Bourne it’s also about the impact that 49,000 illegal migrant workers have upon employers.
The onus is now upon employers to double check which of their employees remains eligible to work. It’s no longer enough that employers made checks at the interview stage. Now, taking reasonable precautions at the outset is no defence if an employee is found to be working illegally later on.
“Employers think that because they worked according to the old rules all is well,” warns Bourne. “But they now need to go through that checking process again.”
If nothing else the furore over the HSMP has sharpened employers’ focus. That’s not a bad thing. Researching this feature uncovered a host of employers who didn’t feel qualified to speak about how they deal with migrant workers. Not only did some think that it was difficult to keep up with the changes, but for others employing migrant workers was too complicated to contemplate.
Helen Stacey, director of Smart Recruitment and a member of the Home Office-based Migrant Workers Task Force, understands. “Employers shouldn’t panic but it’s easy to do so. And when it comes to employing migrant workers do not be overwhelmed.”
According to Stacey the problem isn’t in adhering to the regulations but it’s in knowing what is expected of employers in the first place. She stresses the importance of HR personnel visiting the Home Office website, calling government helplines and talking to local Chambers of Trade.
“If you are professional you have no need to worry,” Stacey explains. “But you must get the information that’s relevant to you. That done, working within the law won’t be a problem.”
For Smart Recruitment, though, this is about more than keeping their nose clean. Instead migrant workers are a benefit that employers should embrace. Stacey believes that by using migrant workers agencies show professionalism, fill vacancies and create valuable links with the local community.
In fact the agency works with local immigration officers, has helped set up English language courses with the TUC, employs a body of staff who can speak up to 10 languages and has built a relationship with Lloyds TSB, helping recruits secure bank accounts.
Sounds complicated? “It’s not,” says Stacey, “If we can do it any company can do it.”
Tightening up
The question is where should HR personnel start if they want to do the same? Now, anyone worth their salt should already have an idea of what’s expected of them. However the government’s determination to crack down on employers - with employers facing, for the first time from February 2008, a maximum civil penalty of up to £10,000 for each illegal employee - is causing skittishness. If you’re forever promising yourself that you’ll tighten up your processes and procedures, now is the time to do it.
Jo Pitts, an employment law consultant at Croner, advises starting with the basics.
“It’s easy to make assumptions about recruits according to where they have come from,” she says. “The result is that some employers don’t bother checking the eligibility of British Nationals and that’s dangerous.”
Pitts warns that thanks to the legion of anti-discrimination legislation an employer should start by protecting itself against race-discrimination lawsuits.
“Just look at the passport and relevant documents of every potential recruit,” she says. “That way your procedures are fair across the board.”
However, there’s more to staying within the law than simply acting equitably.
One man who has been there and done it is Ken Hanslip, asset protection manager of NCP Services, and a member of the Home Office consultative forum. For good reason, the big name behind the country’s car parking prides itself on its diverse, and legal, workforce.
“Like many organisations we have a high turnover of staff and have to be sure that every one of our recruits is entitled to be employed by us,” explains Hanslip. “We do that by keeping our checks simple and structured.”
That’s why Hanslip credits NCP Services’ success to three factors: the company’s central office which keeps the organisation abreast of the relevant concerns, the contract managers, who are specifically trained to recruit genuine jobseekers, and the verification of the contract managers’ work by the central office.
“We have an established and co-ordinated approach to hiring people,” says Hanslip. “Our contract managers are the company’s gatekeepers and they can spot false documentation. We also have our own database of false documentation and work with immigration services and the police.”
For Hanslip it’s about giving managers the confidence to ask tough questions while taking nothing at face value. Managers are also encouraged to contact the central office if they have any concerns and to use Home Office and Border & Immigration Authority weblinks if they have any queries. Finally, NCP Services has trained its managers to stay abreast of the legal requirements of their existing employees. For Hanslip, forgetting about employees once they’ve signed on the dotted line just isn’t an option.
That’s why Hanslip asks, “Would you open your office door to a burglar? No, because this isn’t just about the latest regulations. It’s about protecting what’s yours and that’s why employers should do what they reasonably can to be safe from illegal workers.”