Query re the points system for UK Borders Agency from employer perspective

[HarrogateMum]

Hi HR and employment types! I have a query regarding a member of staff - he works on our night shift and was employed by my predecessor in HR based on the MD's request (he met him and offered him a job).

Said employee has asked me to help him to stay in the UK by being a sponsor so he can apply to extend his visa (he is from Pakistan). I have read through the relevant documentation on the Border Agency website that seems to indicate that in order to become a sponsor we have to pass a "resident labour market test", i.e. we have advertised the job at the Job Centre and it coudl not be filled. OF course we didnt do this as the MD just met him and offered him a job!

It feels like a complete minefield so very difficult to know whether I am obliged to go along with this, or just tell him we dont feeel that we want to go down the sponsorship route.....

The second problem is that my predecessor did not do the necessary checks when she employed them, i.e. making sure they had the right to be in the UK. My difficulty is that there are 2 other employees who may also be in the same boat, but I dotn know how to go about asking them for documentation now 6 months in without it appearing discriminatory.

Can anyone help!?

[MadBadandDangerousToKnow]

Much will depend on the job that your employee is doing - whether it is skilled and where it fits within the tiers of the points-based system. You also need to establish what leave to remain in the UK your employee has and whether it permits him to work here.

The UKBA website has information for employers and sponsors here and an explanation of the points-based system here. You also need to look at UKBA information for employers on preventing illegal working. This recommends that employers should check the entitlement to work of all prospective employees.

The 'resident labour market test' isn't about becoming a sponsor, exactly. (UKBA information on applying for a sponsor's licence is here). The RLMT is the requirement for the employer to demonstrate that there isn't already somebody in the UK who could do the job (so, advertising the job in the job centre etc). The RLMT does not apply for jobs which are on the shortage occupation list - more info here.

If your employer is working in breach of immigration conditions, the consequences for him could be serious - he might be at risk of being removed from the UK. As his employer, you might be at risk of paying a civil penalty. Only an adviser accredited by the Office of the Immigration Services Commissioner can provide immigration advice. Have you sought advice?

[HarrogateMum]

HI Madbad, no I have tried emailing the Borders Agency but they dont reply! I have absolutely no idea of where to get advice on this.

[ruddynorah]

it's ok to ask for documents. issue a letter to all employees saying what is missing. you should have proof each and every one has the right to work here, not just the ones who 'visibly' may not IYSWIM. so have you got copies of everyone's passports (inc visa) plus NI number?

[MadBadandDangerousToKnow]

The Office of the Immigration Services Commissioner website has a 'find an adviser' page - it's searchable by area.

[Kiwinyc]

It can't be discrimanatory to ask for documentation because i got asked to bring in my passport by my employer last yr after being employed them for 7 yrs already! They just said they needed to update their records. (I'm from NZ) I know they took a copy of the relevant pages from my passport when i first joined, but I moved offices 4 yrs ago and they probably got lost, and they finally noticed, and asked again. If i could find the email I'd tell you the wording they used to ask me...

[MadBadandDangerousToKnow]

I guess the potential for discrimination would arise if the employer didn't ask all employees to produce their passports but only asked people from visible minorities. If the request is made across the board then (obviously) everyone is treated the same.