Immigration update

UK immigration alert

Employers wishing to employ skilled workers and intra-company transferees have been able to apply for a licence in anticipation of the Points-Based System's (PBS) implementation in Autumn 2008. Licences should be sought as soon as possible, to avoid delays as Autumn approaches.

Once a licence has been granted a sponsor is then able to issue certificates of sponsorship to those migrants they wish to admit. Migrants will then, as is the case now, have to seek entry clearance before being allowed to enter the UK. The proposal is that biometric identity cards will be issued to all migrants who come to the UK. Employers will be charged with the task of ensuring that the employee's documents are in order. Failure to do so may result in the licence either being revoked or measures put in place via an Action Plan to improve the way in which employers keep their records.

Applications for a licence must be made online. Within ten working days of the application having been made supporting documents need to be submitted to the Border and Immigration Agency (BIA). Guidance on supporting documentation is provided in the form of three lists, A to C. List A details the mandatory documents; list B provides for mandatory documents where applications are being made by certain types of organisation in certain sectors; list C details additional supporting documents. The fee paid is determined by the size and/or type of organisation.

The BIA will set a limit on the number of certificates of sponsorship an employer may issue. This will be based upon the employer's indication of how many certificates of sponsorship it expects to issue annually. The BIA plans to monitor this and, in some cases ask an employer to justify its estimate. An employer can request an increase to its limit. Similarly the BIA may also reduce the limit where it considers it appropriate to do so. The BIA will take into account for example the size of the business, its previous track record with the BIA and how long it has been trading.

When considering a licence application the BIA will ask itself three questions:

• Is the applicant a bona fide organisation operating lawfully in the UK?
• Is the applicant trustworthy?
• Is the applicant capable of carrying out its duties as a sponsor?

A prospective sponsor must nominate a key contact, authorising officer and level 1 user. The key contact will, as the name suggests act as the main point of contact between the BIA and the employer.

All licensed sponsors will be required to fulfill duties, some of which are generic whilst others specific. The generic duties are record keeping and reporting. Records must be kept of all sponsored migrant's passports and UK immigration status documents (and once in place, biometric identity cards). Records must also be kept of sponsored migrant's contact details. There is a duty to ensure that these are updated. Sponsors must also report non-attendances, non-compliance and disappearance of sponsored migrants.

It is important that prospective sponsors are fully aware of the requirements for obtaining a licence and those with a licence of how to keep it. Wragge & Co LLP are fully able to advise and assist those embarking on sponsorship under the Points Based System

Local immigration teams to be introduced across the UK

On 19 June 2008 Home Secretary, Jacqui Smith, announced that new local immigration teams are being introduced across the UK, alongside Local Crime Partnerships with police, as part of a major refocus of the work of the UK Border Agency (UKBA). Around 7,500 UKBA officers and staff up and down the UK will be reorganized into 70-80 Local Immigration Teams and given a clear mission to focus on local immigration crime.

The Government's plans, set out in 'Enforcing the Deal', set a clear focus for the UKBA's work in Britain to target the removal from the UK of the most harmful people first.

Reforms set out in 'Enforcing the Deal' include:

• from 19 June 2008, the UK Border Agency is naming and shaming employers who hire illegal immigrants;
• from this summer the most serious business offenders will be targeted jointly by UKBA and Her Majesty's Revenue and Customs (HMRC) in a new intelligence sharing and joint targeting partnership which will come into force from July;
• employers and colleges applying for carefully policed licences to hire migrants;
• there will be a joint investment and business plan between UKBA and the Serious Organised Crime Agency (SOCA);
• automatic deportation will be introduced for those sentenced to 12 months in prison or more, and deportation will be imposed for those who use guns or sell drugs regardless of their sentence;
• watch-lists of immigration offenders will be shared with the Department for Work and Pensions (DWP), HMRC and the Credit Industry Fraud Avoidance System (CIFAS);
• by January 2009, UKBA will have increased the number of foreign national prisoners removed to over 5,000 during 2008;
• Local Immigration Teams will be up and running in each region;
• a UKBA Criminal Investigation Division will be in place;
• 90 per cent of constabularies in England and Wales will have Immigration Crime Partnerships in place; and
• five local authority partnerships will have been deployed and evaluated.

US immigration alert

On June 3, The Department of Homeland Security announced that the new system, known as the Electronic System Travel Authorisation (ESTA) will begin accepting voluntary online applications on August 1, with registration becoming mandatory on January 12 2009.

The new ESTA will operate in a similar manner to a program being used by the Australian government. Citizens of the 27 countries currently taking part in the U.S. Visa Waver Program (VWP) (including the UK) will be required to apply for and receive authorization to travel to the U.S. in advance of their departure by filling out and submitting an online ESTA application. The application will require submission of data currently provided by travellers arriving by air or sea at U.S. ports of entry on the I-94W landing card. Once it is fully operational the I-94W form will no longer be required from arriving travellers. Travellers will be required to submit the ESTA request at least 72 hours prior to scheduled travel. There will be three possible responses that can be received following ESTA submission: "Authorization Approved", "Authorization Pending", and "Travel not Authorized". DHS officials expect response time to be minimal. Visa Waiver travellers whose ESTA application is not approved must apply for a U.S. visa in order to be able to enter the U.S.

ESTA approval, once received, will last for two years or until the traveller obtains a new passport or has some other change to his or her passport data, such as a name change, whichever comes first. This will allow frequent Visa Waiver travellers to benefit from submitting an early ESTA application once the new system becomes operational on August 1. A previously submitted ESTA can also be amended should travel plans change before departure. Initially there will be no fee for ESTA application but one may be imposed at a later date.

Once the ESTA system becomes mandatory all visa waiver travellers, including accompanied and unaccompanied children and regardless of age, will be required to obtain one before travelling to the U.S. Visa waiver travellers who fail to obtain an ESTA travel authorization after they become mandatory may be denied boarding, experience delayed processing, or be denied admission at a U.S. port of entry.

Advance submission of ESTA applications after August 1 will be a prudent strategy for travellers whose travel plans can be or have been made considerably in advance. Other travellers who need to travel to the United States on short notice will need to keep the 72 hour prior to travel restriction in mind to ensure that the needed authorisations are received prior to embarking for the U.S.

Although the initial phase of ESTA implementation may cause disruptions for some VWP travellers who are unaware of the new program, once it is fully operational it should eliminate the unfortunate situation that now occurs when a visa waiver traveller is denied admission at a U.S. port of entry because of a previous visa overstay or other adverse information in U.S. lookout data bases. By identifying these travellers prior their embarkation for the U.S., ESTA will give them the opportunity to obtain the appropriate visa that will subsequently allow them to enter the U.S. It will also relieve airlines of the responsibility of paying for the return of travellers carried to the United States who are denied admission.

As of August 1 ESTA on-line applications can be submitted through the ESTA web site at https://esta.cbp.ghs.gov. At present the site is under construction and not available. As August 1 approaches we will advise further on how to prepare and submit the ESTA.

ESTA authorizations can be submitted by individual travellers or their agents, and accordingly Wragge & Co LLP will be pleased to request ESTA approvals on behalf of our clients and their employees. This offers several advantages. Firstly, it will remove the burden of submitting and monitoring pending ESTA requests from administrative personnel. Secondly, Wragge & Co's tracking system will enable us to alert you when previously approved ESTAs are set to expire. Thirdly, if an ESTA should not be approved, we will be able to move immediately to arrange expedited visa appointments for the affected individuals, including the preparation of all documentation necessary to ensure subsequent visa issuance.