Employers face new migrant rules

01 Apr 2009

Employers in the fishing industry are facing new migrant rules

Andrew Jackson solicitors explains the new points system for migrant workers who wish to work in the UK, along with its significance for the fishing industry.

Over recent years, fishing and shipping companies have become increasingly dependent on recruiting migrant workers from outside the EU in order to fill skill shortages within their organisations - a practice that has worked well and fulfilled the needs of the business.

However this source of labour may become more restricted in future due to the UK Government introducing an “Australian style" points system of entry for non-EU nationals wishing to work in the UK. The new 'Points and Tiers' system came into effect in February 2008 and has been operating on a 'roll-out' system for the past year.

The benefits of employing migrant workers has long been established and is well recognised throughout the world. The benefits for all those involved in migration help to maintain a balanced society and efficient and effective workforce. However, the Government aims to reduce the number of illegal workers and pinpoint skill shortages quickly in specific industries therefore, have consolidated the various ways of entering the UK into 5 tiers of skill classification.

Previously there were 80 different ways of entering the UK to study and work which meant that it was relatively easy to enter the UK but with so many ways to enter, the system was complex. The new system is aimed at reducing the complexities and making a simple system for all to use. The tier concept is to assist employers/employees in ascertaining which category a particular job or skill falls under in a quick and concise manner. However, out of the 5 tiers, it is expected that one of these tiers will never actually come into force, namely, tier 3, temporary labour shortage for low skilled workers but will remain available should the UK require it.

Essentially, entry into the UK depends on attaining a certain level of points awarded to the individual to reflect qualifications, earning potential, age and the need for skilled employees in a particular sector. The practical effect of the points system is that skilled employees will only be admitted to the extent that they are required to fill shortages in the labour market which cannot be filled by resident workers. There is currently a blanket ban on unskilled workers from outside the EU for the foreseeable future however, should the Government decide to implement tier 3, then this will have the effect of removing the ban.

The relevance for shipping and fishing companies is significant. Whilst ship and hovercraft officers have been identified as a shortage occupation at present (the skills shortage occupation list is regularly updated and should be consulted at first instance) and as such, given priority under the points scheme for entry, the situation is less clear in relation to other ship based roles. Where companies are recruiting non-EU nationals who will be leaving from UK ports to work in international waters problems are not expected. However, companies seeking to recruit such individuals to work in UK coastal waters are likely to encounter greater difficulty in the future.

Guidance issued by The UK Border Agency indicates the following in relation to the fishing industry. Fish farm managers will be considered as skilled labour and as such will enter through tier 2 of the points system.

However, fishermen recruited to command, navigate and maintain shipping vessels and to assist with the shooting, hauling or repairing of nets and the preparation laying and emptying of baited pots together with sorting and stowing of fish may be treated as skilled employees for the purpose of the points system. Individuals also involved in the netting of river fish and maintaining them in spawning pens and the cultivation and harvesting of shellfish on artificial beds are also potentially to be treated as skilled but, the situation is borderline. The individuals must have qualifications equivalent to NVQ or SVQ level 3 or above to be considered as 'skilled' therefore, potentially allowing entry into the UK. Individuals who have the experience of carrying out these jobs but do not have the requisite qualifications will not be able to work in the UK.

Jobs within the fishing industry that do not fall into these specific criteria's and do not have an equivalent qualification of NVQ or SVQ level 3 will not be considered as skilled jobs for the purposes of the points system therefore, will not be granted entry clearance for the UK as they will not attain enough points.

Further, as part of the shake up in immigration law, employers found to be employing illegal workers can face both civil and criminal penalties. The civil penalty is a fine of up to £10,000 per illegal worker and is proving to be very lucrative for the Government. Employers of large work forces may be found to have a small percentage of illegal workers yet the fines can be enormous. In addition, a criminal conviction of up to 2 years imprisonment (and/or fine) for 'knowingly' employing an adult person subject to immigration control who has not been able to attain it may also apply.

Whilst the door is still open to entry for skilled employees into the UK, shipping and fishing companies face new challenges in terms of navigating their way through the new points system. Not only that, whilst working their way through the immigration minefield, employers also need to bear in mind the implications of employment law, particularly in relation to discrimination law when employing migrant workers.

In response to the increasing need for advice in this area, Andrew Jackson has established Work UK a specialist immigration advice service for employers.

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