sportscotland

Human Resources Toolkit

Employing Migrant Workers

1.0 Introduction

1.1 sportscotland is committed to avoiding discriminationand ensuring that no potential applicant is excluded from a position within the organisation because of their colour, race, nationality, ethnic or national origin.

1.2 sportscotland will treat all potential applicants equallythroughout the recruitment process and no assumptions will be made regarding the eligibility of a foreign national or someone from an ethnic minority to work in the UK.

2.0 Scope of Policy

2.1sportscotland’s policy is to ensure:

  • consideration is given to the potential of a vacancy to attract migrant workers
  • all recruitment is carried out in accordance with the UK Borders Agency Codes of Practice (where applicable)
  • data management systems are in place and effectively maintained
  • all employees including migrant workers are treated equitably
  • verifiable documents are retained to confirm all employees’ eligibility to work in the UK
  • records of qualifications for all employees, including migrant workers, are maintained
  • all employees are aware of their responsibility to notify sportscotland of any changes in their immigration status.

2.2This policy reflects the current requirements for employing migrant workers in accordance with the Points Based System implemented by the UK Borders Agency.

2.3Employees shall be responsible for notifying sportscotland, in writing, immediately of any changes to their immigration status. Failure to do so will automatically lead to disciplinary action.

2.4sportscotlandalso has a responsibility to make regular checks on the immigration status of employees when required. Any employee who is not able to provide copies of all relevant information to sportscotlandon demand, to confirm their immigration status, will be deemed by sportscotland as not having the right to work on the UK at that point in time and may be subject to disciplinary action.

2.5This policy applies to all existing and potential sportscotland employees.

3.0 Guidelines / Procedure

Points Based Immigration System

3.1The UK Borders Agency Points Based System replaces the previous UK Work Permit system which was available through the Home Office. The new system is designed to allow the UK to respond flexibly to changes in the labour market. It allows points to be awarded to individuals for qualifications, experience, demand for particular skills and age. The new system has also transferred the compliance obligation and liability to the sponsoring organisation i.e. sportscotland.

The system consists of 5 tiers, which are:

  • Tier 1 – Highly skilled workers
  • Tier 2 – Skilled workers with a job offer
  • Tier 3 – Low skilled workers filling specific temporary labour shortages
  • Tier 4 – Students
  • Tier 5 – Youth Mobility Workers and Temporary Workers

sportscotland has a sponsorship license to employ migrant workers under Tier 2.

Tier 2 – Sponsored Skilled Workers

3.2The Tier 2 points-based system replaces the UK work permit scheme. Tier 2 work permits are applied for by sportscotland when it needs to fill a vacant position with a specific person. sportscotland has to be able to show that there is a genuine requirement for the role being recruited. In addition, the proposed employee must be suitably skilled and/or qualified for the vacant position.

Skills Threshold

3.3In order to satisfy the skills threshold, sportscotland must ensure that the employee has one of the following:

  • aUK degree-level qualification
  • a Higher National Diploma (HND) level qualification that is relevant to the employment
  • a unrelated HND level qualification and at least one year of relevant work experience
  • at least 3 years' experience using the skills acquired by working in the position for which the permit is sought. Such experience must have been gained at NVQ level 3 or above.

Resident Labour Market Test

3.4For sportscotland to be able to obtain a work permit, in most cases it must first be able to prove that it has advertised the position within the UK and could not fill it with someone from inside the European Economic Area. This is known as the resident labour market. The requirements for fulfilling this are very stringent and consequently sportscotland will consult the relevant code of practice in relation to the position being filled.

Each code includes:

  • the skilled jobs at NVQ level 3 or above in each occupation for which sponsors are allowed to issue a certificate of sponsorship
  • minimum appropriate salary rates as defined by the 25th percentile of the Annual Survey of Hours and Earnings or by an alternative code of practice; and
  • acceptable media and methods for meeting the resident labour market test.

3.5The various codes of practice can be found at the UK Borders Agency website:

Shortage occupations

3.6If sportscotland is seeking to fill a position on the shortage occupation list then it does not need to advertise the position in accordance with the requirements of the resident labour market test. More details can be found at the UK Borders Agency website:

Sponsor Licensing

3.7All UK employers wishing to hire an employee from outside the European Union must have an employer sponsorship licence under the points-based immigration system. Employers without this licence are unable to bring in new non-EU migrant workers to the UK or extend the work permits of current employees.

Under this scheme, sportscotland is responsible for:

  • ensuring that it is licensed to employ migrant workers and comply with current immigration regulations
  • issuing certificates to migrant workers to allow them to apply for entry clearance to the UK
  • ensuring that any migrant workers employed are fully compliant with UK immigration law
  • monitoring and recording the immigration status of migrant workers and preventing the illegal employment of migrants
  • keeping up-to-date contact details for all employees
  • keeping appropriate and detailed records on any migrant workers
  • monitoring migrant workers and reporting any violations to the UK Borders Agency.

3.8The UK Borders Agency will look at sportscotland’s ability to meet these requirements before granting an employer sponsorship licence. They may look for organisational competency, history and HR systems in order to make a decision.

Qualifying Under Tier 2

3.9Tier 2 is for migrant workers with a specific skilled job offer in the UK who are needed to fill a temporary gap in the labour force. In order for a job to qualify for a Tier 2 skilled worker work permit then it must meet the following requirements:

  • the job must require a qualification of NVQ level 3 or above
  • the compensation offered to the prospective migrant worker must be appropriate to the job and the local labour market
  • the employer that wishes to employ the prospective migrant must have an employer sponsorship licence.

3.10Successful applicants under the Tier 2 skilled worker category will be issued with a certificate of sponsorship by sportscotland. Once this certificate is received, the applicant can apply for entry clearance to the UK from their home country. Entry clearance is not guaranteed even if a certificate of sponsorship has been issued. All entry clearance applications for the UK are subject to health and security clearance.

Visa Requirements

3.11All vacancies, with the potential to attract a migrant worker, must be advertised for at least four weeks, in line with the relevant Code of Practice from the UK Border Agency. Consideration must be given to the immigration status of an overseas national and to whether any applications need to be made or permits sought prior to the individual commencing employment via sportscotland’s Sponsorship License with the UK Borders Agency.

3.12Citizens of the following countries may work in the UKwithout a work permit:

European Economic Area nationals from the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Slovakia and Slovenia

However, they are required to register with the UK Borders Agency under the Accession State Worker Registration Scheme if they are to work in the UK for more than one month. Offers of employment to individuals from these countries will be subject to their complying with the following requirements and their application for registration being successful:

  • an individual must, within a month of starting work, apply to register with the scheme
  • sportscotland will provide evidence of employment in the form of the offer letter and Statement of Particulars and take a copy of the potential migrant worker’s registration application and retain it until notification has been received from the UK Borders Agency that they have been registered
  • sportscotland will retain a copy of the registration certificate.

If the individual does not register within one month of starting work, or their application is refused, then their employment with sportscotland will be terminated.

3.13Citizens of the following countries have the right to work in the UKwithout a work permit:

AustriaBelgiumCyprusDenmarkFinlandFrance

GermanyGreeceIcelandIrelandItaly

LiechtensteinLuxembourgMaltaNetherlandsNorwayPortugal Spain Sweden Switzerland

While it is not obligatory for European Economic Area nationals or Swiss nationals to apply for a resident's permit, it is advisable that they do so as this is a useful way of demonstrating that they are exercising their rights to work and reside in the UK. Spouses or civil partners and dependent children (up to the age of 21) of citizens of the European Economic Area and Swiss nationals who have the right to work in the UK also have an automatic right to work in the UK, regardless of their nationality. Other family members may need permission before carrying out work.

Bulgarian and Romanian nationals

3.14Since 1 January 2007 Romanians and Bulgarians have had the right to travel

throughout the EU but there are restrictions on employment for workers from Romania and Bulgaria:

  • skilled workers from these countries with the right qualifications and experience can come to the UK on work permits to take up specific jobs where no suitable UK applicants can be found
  • workers with particularly high levels of skills and experience are eligible for admission under the Highly Skilled Migrant Programme
  • low-skilled migration is restricted to those sectors of the economy where the UK already has low-skilled schemes and is subject to a strict quota not exceeding 20,000 workers per year

Commonwealth citizens

3.15Commonwealth citizens are subject to the following conditions:

  • those with a British grandparent may apply for an Ancestry Visa which entitles them to come to the UK and work without restriction for up to five years
  • those aged between 17 and 30 can no longer obtain a Working Holiday Maker Scheme visa as this category has been deleted from the Immigration Rules
  • nationals of Australia, Canada, Japan, and New Zealand may be entitled to work in the UK for up to two years under the Youth Mobility Scheme under tier 5 of the points-based immigration system
  • those who have a certificate of their right of abode in the UK in their passport are entitled to work in the UK.

Other Overseas Nationals

3.16Where other overseas nationals can demonstrate that they have indefinite leave to remain in the UK then they have the right to work without restriction. Overseas nationals on student visas may work up to 20 hours per week in term time although there is no such restriction during holidays. However, they may not pursue a career in the UK on this type of visa.

Record Keeping / Document Checks

3.17Before any employee starts work with sportscotland it is obligatory that they can prove entitlement to work in the UK. sportscotland must check that they have the document(s) in List A or List B below.

List A – Individuals with no restrictions on working in the UK

(covers the duration of the individual's employment):

  • a passport showing that the holder, or a person named in the passport as the child of the holder, is a British citizen or a citizen of the UK and Colonies having the right of abode in the UK
  • a passport or national identity card showing that the holder, or a person named in the passport as the child of the holder, is a national of the European Economic Area (EEA) or Switzerland
  • a residence permit, registration certificate or document certifying or indicating permanent residence issued by the Home Office or the Border & Immigration Agency to a national of an EEA country or Switzerland
  • a permanent residence card issued by the Home Office or the Border & Immigration Agency to the family member of a national of an EEA country or Switzerland
  • a Biometric Immigration Document issued by the Border & Immigration Agency to the holder that indicates that the person named in it is allowed to stay indefinitely in the UK, or has no time limit on their stay in the UK
  • a passport or other travel document endorsed to show that the holder is exempt from immigration control, is allowed to stay indefinitely in the UK, has the right of abode in the UK, or has no time limit on their stay in the UK
  • an Immigration Status Document issued by the Home Office or the Border & Immigration Agency to the holder with an endorsement indicating that the person named in it is allowed to stay indefinitely in the UK or has no time limit on their stay in the UK, when produced in combination with an official document giving the person's permanent national insurance number and their name issued by a government agency or a previous employer
  • a full birth certificate issued in the UK that includes the name(s) of at least one of the holder's parents, when produced in combination with an official document giving the person's permanent national insurance number and their name issued by a government agency or a previous employer
  • a full adoption certificate issued in the UK that includes the name(s) of at least one of the holder's adoptive parents when produced in combination with an official document giving the person's permanent national insurance number and their name issued by a government agency or a previous employer
  • a birth certificate issued in the Channel Islands, the Isle of Man or Ireland when produced in combination with an official document giving the person's permanent national insurance number and their name issued by a government agency or a previous employer
  • an adoption certificate issued in the Channel Islands, the Isle of Man or Ireland when produced in combination with an official document giving the person's permanent national insurance number and their name issued by a government agency or a previous employer
  • a certificate of registration or naturalisation as a British citizen when produced in combination with an official document giving the person's permanent national insurance number and their name issued by a government agency or a previous employer
  • a letter issued by the Home Office or the Border & Immigration Agency to the holder that indicates that the person named in it is allowed to stay indefinitely in the UK when produced in combination with an official document giving the person's permanent national insurance number and their name issued by a government agency or a previous employer.

List B – Those with restrictions on working in the UK

(covers a period of 12 months, after which, the check will be repeated):

  • a passport or travel document endorsed to show that the holder is allowed to stay in the UK and is allowed to do the type of work in question, provided that it does not require the issue of a work permit
  • a Biometric Immigration Document issued by the Border & Immigration Agency to the holder that indicates that the person named in it can stay in the UK and is allowed to do the work in question
  • a work permit or other approval to take employment issued by the Home Office or the Border & Immigration Agency when produced in combination with either a passport or another travel document endorsed to show the holder is allowed to stay in the UK and is allowed to do the work in question, or a letter issued by the Home Office or the Border & Immigration Agency to the holder or the employer or prospective employer confirming the same
  • a certificate of application issued by the Home Office or the Border & Immigration Agency to or for a family member of a national of an EEA country or Switzerland stating that the holder is permitted to take employment that is less than six months old when produced in combination with evidence of verification by the Border & Immigration Agency Employer Checking Service
  • a residence card or document issued by the Home Office or the Border & Immigration Agency to a family member of a national of an EEA country or Switzerland
  • an Application Registration Card issued by the Home Office or the Border & Immigration Agency stating that the holder is permitted to take employment, when produced in combination with evidence of verification by the Border & Immigration Agency Employer Checking Service
  • an Immigration Status Document issued by the Home Office or the Border & Immigration Agency to the holder with an endorsement indicating that the person named in it can stay in the UK, and is allowed to do the type of work in question, when produced in combination with an official document giving the person's permanent national insurance number and his or her name issued by a government agency or a previous employer
  • a letter issued by the Home Office or the Border & Immigration Agency to the holder or the employer or prospective employer that indicates that the person named in it can stay in the UK and is allowed to do the work in question when produced in combination with an official document giving the person's permanent national insurance number and their name issued by a government agency or a previous employer.

All documents will be checked for the likeness of photographs, dates of birth being consistent with candidates' appearance, expiry dates, stamps, endorsements and names. Photocopies of the document/relevant parts of the document will be kept on the individual's personnel fileand signed off by a member of HR to verify having seen the original copy.

Avoiding race discrimination

3.18Regardless of national origin, all potential employees, including British citizens, will be subject to the document checks outlined during the recruitment process. Anyone who cannot produce the necessary documentation will be referred to the Citizens' Advice Bureau for further advice. However, sportscotland will not employ such an individual until the necessary checks have been carried out.

Liability

3.19 sportscotlandis liable for compliance with the Immigration legislation and for ensuring that all employees and not just those from outside the UK can prove their entitlement to work in the UK.

4.0 Compliance

4.1Employees who do not support this policy and procedure may be subject to disciplinary action.

4.2Compliance with this policy will be monitored by the Head of Human Resources.

sportscotland HR Toolkit - Employing Migrant Workers Policy

October 2010 – version 1.0