Tightening of Immigration system and the fairness of dismissal over immigration status

19th June 2011 The Government is consulting over further measures to reduce overall immigration into the UK. The measures include a rebranding of the Tier 2 (the skilled worker route) status, as a temporary status. This is to end the current assumption that settlement in the UK will automatically be available for Tier 2 migrants. However, the British Chamber of Commerce has warned that the changes proposed will be "incredibly disruptive to companies of all sizes, and [will] deter some skilled workers from coming to the UK in the first place." The consultation isopen until September 2011.

The effect of the changes, so the Government believes, is that after a maximum of 5 years most Tier 2 migrants will be expected to leave the UK. However, some categories of Tier 2 migrants will retain an automatic route to settlement in the UK covering, for example, those migrants that earn over £150,000 or are in occupations of a specific economic or social value to the UK. The proposals include a new category to which expectional Tier 2 migrants may switch into after three years in the UK and apply for settlement. Obviously it will only be possible for employers to plan around these measures once the consultation period has ended and the Government has made any consequential changes to the immigration system.

In the recent of Kurumuth v NHS Trust North Middlesex University Hospital case the Employment Appeals Tribunal (EAT) has ruled that it was reasonable for an employer to dismiss an employee when the UK Border Agency failed to satisfy it that the employee had a right to work in the UK. The case involved an individual that came to the UK in 1992 with a work permit. However the renewal application was refued in 1997. On submitting an appeal the Home Office wrote to her saying that she had the right to remain in the UK while her appeal was pending. Nevertheless, following the introduction of the points based immigration system her employer was not happy to accept the letter from the Home Office as sufficient proof of entitlement to stay in the UK. Her employer enquired over her status with the UK Border Agency over whether or not the appeal had been dealt with. As a consequence the employer concluded that the employee did not have proof that she was entitled to work in the UK. She was therefore dismissed without notice. Claims were submitted to the Employment Tribunal over the fairness of the dismissal. The Tribunal ruled that the dismissal was fair. On appeal to the EAT sympathy was expressed over the situation faced by the former employee. However it acknowledged that a determination of her actual employment status was NOT necessary to decide if her employer had reasonable grounds for her dismissal. It accepted that the employer genuinely belived that she did not have the right to work in the UK. Only the reasonableness of that belief needed to then be considered. The employer had made enquiry with the UK Border Agency, but the Agency had failed to satisfy the employer on enquiry over her work rights by failing to give a clear statement about her immigration status. On that basis it was accepted that the employer had a genuine and reasonable belief that the employee was no longer entitled to work in the UK.

The decision in the case of Kurumuth suggests that it is reasonable for an employer to err on the side of caution in dismissing an employee in order to avoid fines of up to £10,000 for employing illegal workers. This case highlights the fact that employers are required to make reasonable enquiries in the course of deciding whether it is fair to dismiss an employee. However, it also indicates that a reasonable enquiry does not mean that an employer must carry out an exhaustive enquiry, and is entitled to make a decision based on a reasonable enquiry. At Hallett Employment Law Services we can advise you and guide you on the steps required to carrying out a proper investigation into any problem with an employee.  

If you need further help or assistance on dealing with any matter raised in this article please do not hesitate to contact us.