In an effort to tighten border control, the government has introduced new rules for migrant workers from outside the EU. What do they mean for employers?

Companies need to ensure their HR systems comply with a new immigration law, introduced by the government in February in order to meet the fast-changing UK immigration requirements. Under the new rules, employers must be licensed to employ migrant workers from outside the EU and those workers must be eligible to work in the UK under an Australian-style, points-based system.

What does this mean? Employers must apply to join a register of sponsors, entitling them to issue sponsorship certificates to prospective employees, while prospective employees must earn a certain number of points, awarded for aptitude, experience, age and also the demand for their skills, before they can work in the UK.

Once rolled out in full, the rules will allow employers and employees to apply under one of five categories or tiers—ranging from highly skilled workers to youth and temporary workers. The new system is run by the Home Office's UK Border Agency (UKBA), which replaced the Border and Immigration Agency (BIA) last month.

The government's rationale is clear. The number of foreign workers in the UK has risen exponentially over the past six or seven years—from 864,000 in 2001 to two million last year, according to Labour Force Survey figures. "The main driver is more rigorous control over who comes into the country; the government wants to ensure only those who benefit the economy come," says Jonathan Goldsworthy, an associate at law firm Bird & Bird.

Paula Higson, strategic director with UKBA, agrees. "Our aim is to boost the economy and enforce compliance in the system," she says. "We want to make it very clear who we want to come here and make it more difficult for people to work illegally. It is all part of substantially strengthening our borders." The move is part of a general crackdown on illegal working. In 2006 alone BIA staged more than 5,200 illegal working operations, removing more than 22,000 people.

The new five-tier system replaces a total of 80 schemes that previously provided people with routes into UK jobs. Tier 1, for highly skilled workers, went live at the end of February and will be followed by the launch of tier 2, for skilled migrants with a job offer, in the autumn. "Tier 2 is the real change for businesses because it effectively replaces work permits," says Goldsworthy.

Employers are required to submit sponsorship applications online and supply supporting evidence for employees. Jobs have to be advertised throughout Europe, and employers will also have to carry out checks annually. As Goldsworthy notes: "The message from the government is if you want to employ migrant workers-and they bring a benefit to your company-there is a quid pro quo. You have to take more responsibility for managing them,"

The change will affect any sector and any business that currently employs non-EU migrant workers, and they need to be prepared for it. "If you are not on the sponsorship register you won't be able to employ a migrant under tiers 2-5," says Goldsworthy.

The system has already proved controversial. Tier 3, for low-skilled and unskilled workers filling specific temporary labour shortages, is currently indefinitely suspended. The government believes that employers who would apply under this category should be able to source labour from the EU-especially once restrictions on migrants from Bulgaria and Romania, two new member states, are lifted.

Critics say this is unrealistic. According to Christine Lumb, chief executive of the charity Concordia, which places temporary low-skilled workers with UK farms under the Seasonal Agricultural Workers Scheme (SAWS), agriculture faces severe difficulties without non-EU migrants. "Most of the European migrants who come here are only interested in long-term jobs.
Last year, SAWS saw a 15 per cent drop in numbers from the EU, and this year we anticipate a 20 per cent reduction," she says. "We have always depended on the Poles from March until May, but that source is now drying up." To fill the potential gaps, the government has set up the Migration Advisory Committee (MAC) to advise the Border Agency on any "shortage occupations". As Higson points out: "If the MAC advises us that we have shortages in certain low-skilled occupations, then we'd first of all open it up to Romania and Bulgaria and if that is still not enough to meet the shortages, tier 3 would be the place where we'd introduce particular schemes."

Lumb is hoping the MAC will make an exception in agriculture. "I can understand that there are concerns generally about migration, but our scheme has never impacted on long-term migration," she says.

The MAC, chaired by David Metcalf from London School of Economics, will take representations from business and will produce a shortage occupation list every six months, starting in June. The committee will consider shortages in skilled occupations in tier 2 and if there are any, employers will be allowed to bring in workers without first advertising the job in Europe.

In theory, the system is flexible and responds to demand. At the same time, though, it's tough: employers who turn a blind eye to illegal working now face fines of up to £10,000—double the previous fine—and even prison sentences. Just how worried should companies be?

Goldsworthy says the system doesn't need to increase the load on employers, but they need to look at changing now. "It is very important employers get their systems in place; they can already now get their sponsorship applications in for tier 2," he says.

Higson, too, says there won't be any extra burden on business. "We are re-affirming more clearly the responsibility that employers have [to ensure] that people are legally allowed to work here. Good employers will have systems in place," she says.

Kitchens feel the heat

Proprietors of Indian and Chinese restaurants say they'll find it harder to get the skills they need

One of the requirements of the new points-based system for permission to work in the UK is an "acceptable standard of English". Says Paula Higson, former director of the Border and Immigration Agency: "It's the government's view that people who come here are encouraged to integrate and become a full part of British life, and the ability to speak English is a part of that."

There are fears that people coming to work in Chinese and Indian restaurants will be excluded. Of the 12,000 migrants who come to work in the UK hospitality sector, 7,000 are chefs, the vast majority arriving from Asia. Many have rudimentary English.

"We have raised the problem at a very high level of government, but if we don't get a compromise, many higher class ethnic restaurants will find it hard to operate because they can't find these people in Europe, and generally you can't find them among ethnic groups who are already in the UK," says Martin Couchman of the British Hospitality Association.

Enam Ali, chairman of the Guild of Bangladeshi Restaurateurs, argues that the language requirement is unfair. "Chefs just need the language to get by in the kitchen and shopping. They can go to a language school if they live here, but they don't come to the kitchens to teach. They are skilled to make a good curry," he says. "It will be very difficult to find somebody in India or Bangladesh who qualifies—traditionally people from those countries with cooking skills are not literate."

He says Europeans don't fit the requirements of the curry kitchens. "If the government can give me eastern Europeans with the skills and the cultural sensitivity, I will employ them, but they don't exist."