Businesses that employ overseas workers need to “speedily apply for licences” ahead of new legislation in November, a Birmingham-based legal specialist has warned.
Restaurant owners, particularly, should note a new immigration point-based system has the potential to seriously affect companies that miss the deadline, Nilay Shastry of Irwin Mitchell Solicitors said.
“Once the licence has been granted, a business can apply for a certificate of sponsorship – work permit – and the prospective employee can apply for entry clearance or a visa,” he said. “However, this takes time and for some businesses the clock may be against them. I am thinking of restaurants which may need to recruit additional kitchen staff, such as chefs, to cope with the Christmas trade.”
The immigration process has been a cause of concern for restaurants, according to Mr Shastry. “The new point-based system favours highly skilled migrants who must earn points in several categories, including formal education.
“Failure to earn points in this category is likely to result in an unsuccessful application. A great number of chefs have learned their trade by informal apprenticeships in the kitchen, leading to no method of evaluating the applicant’s qualifications other than their proficiency. Restaurants were faced with the prospect of being unable to recruit cooking professionals who, while possessing the skills, would not have a recognised qualification, equivalent to a NVQ level 3.
“However, it’s been reported the Home Office has added skilled chefs to the official shortage list, so they now automatically meet requirements. I applaud the authorities for taking steps to increase control of immigration and for taking on board it needs to be in a fashion which takes account of employers.
“The prospective employees, however, will still need to show their knowledge of the English language. Many chefs may not have this skill as they trained to work in their domain of the kitchen not dealing with customers. They will also have to demonstrate their ability to maintain themselves and any dependants until they receive their first pay cheque, equating to £800 for the main applicant and an additional £533 for each dependant.
“The shortage of skilled chefs has already had an impact. One leading Japanese restaurant in London has been reported as being without a sushi chef for six months. I am also aware of an apprentice sushi chef whose training has come to an end because his mentor has had to leave the country as his visa application was rejected.”
An employer, found to have offered work to anyone aged sixteen or over, who does not have permission to work in the UK and is subject to immigration control, is liable to a civil financial penalty of up to £10,000 per illegal worker. Should the employer have knowingly employed the individual, it becomes a criminal offence, carrying an unlimited fine and/or prison sentence of up to two years.
Since May 2008, the UK Border Agency has started to fine employers who use illegal migrants. Forty three businesses have been fined, of which 36 were restaurants. Companies have been fined up to £5,000 per illegal migrant. The fines ranged from £5,000 to £25,000.
According to the Immigration Advisory Service (IAS), more than 27,000 extra workers are required to keep the UK’s 9,000-plus curry restaurants in operation.
Restaurants can protect themselves by keeping accurate HR records, says Mr Shastry.
“Employers must conduct thorough checks on their employees’ legal eligibility to work in the UK. Employers should have contact details of employees. Employers should do this at least once a month.”
Businesses can appoint a representative to handle the compliance related matters for them.