Sudden, significant and immediate changes to the rules of the Highly Skilled Migrant Programme (HSMP) were announced on 7 November.

The recruitment sector should note the new rules carefully, as it is an offence to employ an illegal immigrant. The current penalty is a fine of up to £5,000, but sanctions of jail terms, disbarring of company officers and seizure of assets are in the pipeline.

Immigration minister Liam Byrne argued that the new rules are good for employers and applicants, though affected recruiters and employers, as well as migrants who find themselves demoted from the ranks of the “highly skilled”, may disagree.

However, the relative clarity and objectivity of the new criteria make it easier to predict the outcome of applications, saving time, money and disappointment.

Points mean permits
Under the HSMP, individuals gain points against set criteria. If successful they can come to the UK to work. The HSMP is more flexible than the work permits scheme. Individuals, not employers, apply. They do not need a job lined up first. The individual does not have to leave the UK if their employment ends. And there is no need for employers to advertise the position before taking on an HSMP employee.

Applicants need to score 75 points. Points are available for:

 • Past earnings: dependent on level, time and place earned.
• UK experience: five points for past UK earnings over £16,000 or a year’s degree-level study at a UK college.
• Age: under 27 = 20 points, age 28 or 29 = 10, age 30 or 31 = five.
• Education: bachelor’s degree = 30 points, masters = 35, PhD = 50, eligible MBA = 75.
• Proven English language ability is now mandatory, and scores 75 points.

Under the new system, points are no longer available for:
• Work experience gained outside the UK.
• Achievement in the applicant’s chosen field.
• Priority arrangements for general practitioners.
• Partner’s achievements.

Successful applicants will be given permission to work in the UK for up to two years. Later, they may apply for an extension for a further three years. Under the new rules, extension applicants are also subject to the points-based system. This new test is far more rigorous.

Discrimination danger
Some people now working under the HSMP might not qualify for an extension. Such individuals will need to consider switching to another immigration category. Under the transitional arrangements it may be possible for them to switch into work permit employment without the employer having to carry out a resident labour market research test. If no alternative category is available, the employment will have to be terminated, following employment law procedures.

The changes have implications for those who aim to seek indefinite leave to remain after five years in the UK under the HSMP.

Recruitment firms with registered HSMP workers should reassess eligibility under the new rules. These people may work in the UK until existing approval expires. But if it is clear that they will not qualify for an extension under the HSMP, and there are no alternative immigration categories available, it will not be appropriate to place them in a long-term job.

The new HSMP rules are a step towards implementing a five-tiered, points system for all migration routes for work and study in the UK by April 2009.

And on 9 November, David Cameron outlined the Conservatives’ plans for “significantly less”” immigration.

As immigration rules undergo a period of change, there is uncertainty over the future employability of candidates who face immigration controls. However, recruiters should not base decisions about these candidates on speculation about future immigration rules. Neither should employers give instructions to agencies to do so. Such practices could be unlawful race discrimination.

Double-check
The case of Dacas v Brook Street Bureau (UK) in 2003 highlighted the often grey area as to whether a temp supplied by an agency is an employee (rather than a worker or self-employed) and whether the employer is the agency or the end-user.

It is therefore sensible for employment agencies and clients to check immigration documents for all agency workers. They should do so regardless of the contractual arrangements, or the statements by the employment agency as to the employment status of the individual and the identity of the principal, in order to comply with the Conduct of Employment Agencies and Employment Business Regulations 2003.

• Trevor Bettany is a partner and Anne-Marie Balfour is a solicitor with City law firm Speechly Bircham.