“A strong country isn’t one that pulls up the drawbridge … it is one that controls immigration.” [Prime Minister, David Cameron], 21 May 2015.

Tougher curbs on migration from outside the European Union have already had a significant impact on the numbers of students and family members travelling from countries such as India and Pakistan.

Northern Ireland has sought to lessen the procedural burden on migrants however, with an Indian Visa and Consular Application Centre having opened in Northern Ireland in March 2015. This was a step in the right direction for Northern Ireland's 8,000-strong Indian community, as it means they will no longer have to apply online, travel to the Indian High Commission in London or to an Indian consulate in England to obtain a visa or identity documents for life in Northern Ireland.

So, why the focus on immigration cuts?

Conversely, it remains the case that there is a significant backlog of people in the United Kingdom who have overstayed their visas and whose whereabouts are unknown, estimated in and around 300,000. It is not known how many of those individuals are working.

Migrants with current leave to remain but who are working illegally, in breach of their conditions, may be prosecuted under the Immigration Act 1971 and be liable on summary conviction to a six-month custodial sentence and/or an unlimited fine.

Change (perhaps somewhat unwelcome) on the horizon

A proposed immigration bill outlined by Prime Minister David Cameron in his speech to the Home Office last week could have sweeping consequences for employers who recruit from outside the European Economic Area (EEA). The Prime Minister's focus centred on the consequences of uncontrolled immigration; a suggestion of significant damage to our labour market with significant additional pressure on wages.

In his speech, the Prime Minister said that he would ask the Migration Advisory Committee to advise on significantly reducing the level of economic migration from outside the EEA and said the government would also seek to limit the duration particular professions are deemed to be in 'short supply'.

The Prime Minister commented that some professions remain, for no good reason, on the Shortage Occupation List year after year, with no appropriate action taken to address the issue.

Positions on the Shortage Occupation List include: engineers, graphic designers, biological scientists, software professionals, physicists, mathematics, science secondary school teachers, geologists and healthcare roles, including social workers.

The bill, also referenced in the Queen's speech last week, would change the rules and regulations around employing migrants. 

If the proposed legislation comes into force, it will likely impact businesses in industry with a shortage of skilled workers. A visa levy on businesses which use foreign workers is also being considered to help fund apprenticeships. 

New measures

The Prime Minister committed to the installation of a new enforcement agency, introduced to clamp down on businesses not paying the minimum wage and to prevent employers bringing in 'cheap labour that undercuts the wages of local people.' 

Employers could face a myriad of implications; the proposed immigration bill discouraging 'legitimate' migrants a primary concern. Migrants will face scrutiny from all angles, be it the DVLA, NHS, opening a bank account or renting a house.

A new offence of illegal working will be introduced to close a current legislative loophole. Going forward, people who are in the UK illegally cannot benefit from working and their wages will be given the same status as a 'proceed of crime', making the monies subject to seizure by police.

No business or recruitment agency will be permitted to recruit abroad without  first advertising in the UK. In short, those sectors that have become over-reliant on migrant workers will be encouraged to train – and employ individuals from the United Kingdom instead. 

The new criminal offences could affect businesses and migrants who have no intention of working or employing someone illegally. For example, those circumstances where an employer has unintentionally made a mistake in the sponsorship process. Genuine error is afforded little to no weight and unfortunately will provide little defence.

The perils of getting it wrong

Given the complexities of, and frequent changes to, immigration law in the United Kingdom it is all too easy for employers to make a mistake and employ someone who does not have the right to work for them. At present this is recognised, and appropriately so.

It would seem totally disproportionate therefore to effectively make illegal working a one-size-fits-all strict liability offence. The proposed legislation suggests this is the direction in which we head.

As such, now is the time to ensure that your immigration policies are watertight, your employment practices accord strictly with the Immigration Rules and your recruitment processes for migrant workers reflect the directions issued by UK Visas and Immigration. The implications of 'getting it wrong' plainly cross the threshold of criminality, more so than ever before.

Finally, the immigration issues raised by both the Queen and Prime Minister, and the related bill, are likely to take a while to make it into legislation.  This is a 'watch this space' scenario, with an anticipation that the aggressive stance adopted by UKVI will be a continued theme.  The question also arises, will the proposed legislation have direct effect in Northern Ireland?  A&L Goodbody will keep you up to date on the latest developments as they unfold.

For further information please contact a member of our Employment team.

Date published: 05 June 2015