FW moderates a discussion on corporate immigration in 2017 between Maria Jockel, legal principal and national leader at BDO Migration Services, and Tom Mintern, an associate at Bird & Bird LLP.
FW: What are some of the major corporate immigration developments that you have seen over the last year or so? Are these set to impact the recruitment efforts of businesses in 2017?
Jockel: Following the merger of the Department of Immigration and Border Protection (DIBP) with the Australian Customs and Border Protection Service, and the formation of the Australian Border Force as the operational enforcement arm, the DIBP is now an enforcement agency and a criminal enforcement agency with a focus on delivering on national security, law enforcement and security priorities. In response to the overwhelming demand for temporary and permanent entry to Australia, with the DIBP receiving over 25,000 visa applications each day, Australia’s migration programme is becoming increasingly restrictive and subject to ongoing change. The increased emphasis of the 457 visa temporary programme is to address genuine skill shortages while safeguarding the employment and training opportunities of Australians. With the review of the consolidated sponsored occupation list, it is likely that many occupations which are currently on the list will be removed. Further, while only specified occupations are subject to labour market testing, there is an increasing trend for applications to be refused on the basis that the scope and scale of the business does not require the recruitment of an overseas worker or that the aim of the recruitment is to achieve a migration outcome. The implementation of the Migration Amendment (Charging for Migration Outcome) Act 2015 punishes visa applicants for paying or offering to pay, as well as the sponsoring company for charging, for a migration outcome. It imposes a strict liability penalty with heavy fines, as well as a discretionary power to cancel any visa that the visa applicant holds, irrespective of whether such a payment or offer is related to the ‘sponsorship event’. As the DIBP continues its robust regulatory reforms, introducing ever expanded powers and significant penalties and sanctions for breaches, companies are now operating in a more complex environment. This means that the recruitment of talent requires talent and strategy to align to ensure that businesses meet their skilled labour force needs.
Mintern: Over the past year in the UK, we have seen a number of corporate immigration developments that are likely to have a significant impact on businesses. In particular, the announcement of the immigration skills charge in March 2016 will mean that many businesses will face an additional cost of £1000 per year in relation to each member of their migrant workforce that they wish to sponsor under the Tier 2 arrangements. The Home Office has also confirmed that the Tier 2 (ICT - Short-Term Staff) category will close in April 2017. This follows the closure of the Tier 2 (ICT – Skills Transfer) category in 2016, meaning that all ICT migrants, except graduate trainees, must now earn a minimum salary of £41,500. These changes may make it more difficult for sponsors to transfer staff from their overseas entities at short notice. On the other hand, sponsors will be pleased by the Home Office’s confirmation that the requirement for ICT migrants to have 12 months’ prior employment with a sponsor group company will be removed for those earning a salary of £73,900 or above. While there has not been any confirmation of changes to the immigration rules as yet, Brexit will, understandably, have a major impact on UK immigration and, while this is likely to be focused on EU nationals, there is likely to be a knock-on effect on corporate immigration more generally.
FW: What are the key benefits for businesses of tapping into the global talent pool? As far as the risks and challenges of corporate immigration are concerned, what strategic advice would you give companies on managing visa issues and sponsorship schemes?
Mintern: As the world becomes ever more global, businesses are now operating across borders, continents and time zones. This has changed the employment landscape, with companies having to move away from the ‘traditional’ office model, expand their working practices and operate more flexibly to ensure that they attract and retain talent. Access to multiple local labour markets enables businesses to obtain a diverse global talent pool, aligned with their strategic needs and those of their clients. Our advice is to plan as far as possible in advance and engage key stakeholders, both internally and externally, from the outset. This is the key difference between making single visa applications and a global mobility mandate. A global mobility mandate requires HR professionals to manage the full lifecycle of an employee relocation and work through a number of issues across a range of legal disciplines, including in relation to immigration, employment, benefits and tax. Failure to engage on a global mobility project can ultimately lead to a delay in bringing in key talent and can result in further issues down the line.
Jockel: Recruiting globally allows businesses to identify and recruit the right talent at the right time. However, the current restrictive immigration landscape, and increasing focus on protecting local labour, means businesses must align their talent strategies with a firm understanding and compliance with the regulatory environment. The visa application processes are more complex and the criteria to be met for visa grants are more onerous. With the Australian Border Force now responsible for sponsorship monitoring, enforcement and compliance, it is vital that companies ensure that the visa requirements and their sponsorship obligations are met.
FW: Could you outline the cost implications of running a global corporate immigration programme? To what extent are companies using technology to reduce costs and increase efficiency?
Jockel: The cost of running a global corporate immigration programme is likely to rise in response to the increasing complexity of the visa application process and the nature and extent of the documents that must be lodged to meet the regulatory requirements. Application fees can also be significant. Under the Subclass 457 visa programme, the sponsorship application fee is currently $420, the nomination application fee is $330, and the visa application fee is $1060 for the main applicant and each accompanying family member over the age of 18 years. A child applicant’s application fee is $265. The application fees of a couple with three children would currently be $2915. While visa applications are time and cost intensive, savings can be made by understanding the nature and extent of the information and documents to be provided, ensuring that these are provided accurately and on a timely basis and using technology to reduce costs and increase efficiency. This includes the use of checklists, of online questionnaires and forms and the use of document management systems which align with immigration and human resource processes and help to reduce administrative and associated costs.
Mintern: The cost implications involved in running a global corporate immigration programme can be significant. However, ensuring that the programme is fully planned and executed is likely to create cost savings in the long term. In order for the programme to be successful, businesses often appoint an individual to operate as a global mobility manager to drive the programme forward. Clearly, such an appointment has cost consequences on its own. However, the potential financial exposure that results from a poorly planned programme can be significant. Practically speaking, if a mobility programme fails it is likely to mean that a business is unable to sponsor a migrant and relocate talent in accordance with their business needs. More pertinently, businesses may be subject to criminal and civil penalties. New illegal working offences introduced by the Immigration Act 2016 in July last year expose businesses, and their employees, to potentially unlimited fines and a maximum prison sentence on indictment of up to five years. Since 1 December 2016, immigration officials have also been granted additional powers enabling them to close business premises for up to 48 hours, pending the outcome of an application for an ‘Illegal Working Compliance Order’.
FW: How would you characterise the impact that recent legal and regulatory issues have had on corporate immigration practices?
Mintern: As the Home Office continues to make regular changes to the Points Based System, it is becoming increasingly important for businesses to keep abreast of immigration developments and to engage with key internal stakeholders, including HR professionals and legal teams, to ensure that all parties are aware of the developments and that internal processes are modified accordingly. Unless an agreement can be reached as part of the negotiations with the EU, Brexit will have a significant impact on corporate immigration practices. In theory, upon Brexit, EU citizens would no longer have the automatic right to reside and work in the UK, and vice versa, unless they had already obtained permanent residency.
Jockel: The increased complexity of the legal and regulatory framework, coupled with the significant penalties for breach, means that businesses must focus on quality assurance, risk and risk management as part of their corporate immigration practices. This requires a review of current operational risk management models. Governance, risk and compliance must be embedded into the strategic, business planning, human resource and decision-making processes of the organisation as a whole. By understanding the legal and regulatory framework and focusing on quality assurance and compliance, companies can ensure that they have the right talent in the right place and at the right time to meet their operational needs.
FW: With countries applying strict security and identity checks on applications for entry, to what extent will innovations such as biometric identity cards, which have become the norm in many jurisdictions, help or hinder corporate immigration?
Mintern: The UK introduced biometric residence permits in 2015. This required businesses to amend their internal governance procedures, in order to remain compliant with the Home Office’s immigration rules. Businesses will also need to keep an eye on equivalent changes in other jurisdictions in which they operate. It is also worth noting that biometric residence cards will contain migrant workers’ ‘sensitive personal data’. Businesses should be mindful of this and ensure that processing of this data is in compliance with the Data Protection Act 1998 and any guidelines published by the Information Commissioner’s Office.
Jockel: With the significant movement of people across borders, the use of biometrics, which refers to a measurable characteristic that is unique to an individual, such as fingerprints, facial structure, iris or a person’s voice, is part of a range of requirements on applications for entry to Australia. Biometrics are now embedded into Australia’s visa processing programme, which incorporates biometrics collection into onshore and offshore visa application processes. The collection of biometric data is an increasingly important tool in identity management. It helps to reduce fraud and integrity risks, and, as such, it is an aid to corporate immigration. Biometrics is part of the heightening of security by the DIBP’s systems, which include an analysis of metadata, a whole of government approach and the sharing of information with national and international agencies and partnerships to manage Australia’s borders and the movement of goods and people.
FW: What steps can companies take to ensure their immigration programmes are compliant and up-to-date with policy changes?
Jockel: More than ever before, companies must ensure that they obtain up to date and expert immigration advice to ensure their immigration programmes are compliant and meet the significant and ongoing legislative and policy reforms in Australia. This includes an understanding of the significant transformation of the DIBP’soperations in recent years and its focus on compliance, enforcement and sanctions.
Mintern: Businesses should consider appointing global mobility managers, dedicated to the planning and execution of global mobility programmes. It is important that these individuals receive the necessary training and access to resources in order to succeed. Global mobility managers should be afforded the time to understand the legislative parameters which dictate a mobility programme and to also develop relations with key internal stakeholders in order to ensure that appropriate support networks are in place. In tandem with this, they should also be allocated the appropriate financial resources to work with external stakeholders to minimise the risk of mistakes being made or the programme being delayed as a result of human error.
FW: What final piece of advice would you give to companies on managing current and upcoming corporate immigration issues, to maximise the benefits of a global workforce?
Mintern: In order to maximise the benefits of a global workforce, businesses should be viewing global mobility as a multi-faceted project, rather than focusing on a particular component of an international relocation, such as immigration. Although immigration is a critical component of a global mobility programme, relocating key talent is about much more than a stamp in a passport. It involves a careful balance of both a company’s and a migrant’s objectives. In particular, it will be important to consider what contractual documentation will be needed for the relocation, how the migrant’s benefits and incentives package will be affected, whether there are any tax implications that arise as a result of the relocation and where the migrant will live.
Jockel: Companies need to be on constant alert to the rapidly changing regulatory framework, which is a part of a new and evolving order of border protection. By having a firm understanding of the new order, talent management now must be part of a strategic planning process and separate from routine human resource activities. Only by knowing and working within local constraints can companies meet their labour force needs.
FW: Given the ongoing volatility of the global political and economic environment, how do you foresee corporate immigration unfolding in 2017 and beyond?
Jockel: Immigration, and corporate immigration, continue to be topics of lively debate. The rise of populism includes a focus on border protection. Following the UK’s Brexit vote and the election of president Trump, there have been calls for France and the Netherlands to leave the European Union. Australia’s response to global volatility and the changing economic environment means that the DIBP will continue to balance a visa programme which is responsive to Australia’s economic needs, with an ongoing focus on operational enforcement, specialised border capability, intelligence and visa compliance. 2017 and beyond will continue to be hectic for immigration lawyers as the national law and immigration policy continues to change to meet the priorities of the government of the day. Only by understanding the priorities of the government of the day in this complex and dynamic area of law, can corporate immigration continue to meet Australia’s skilled labour force needs.
Mintern: The prime minister has made it very clear that one of her key priorities in the Brexit negotiations with the EU will be to control immigration from within the EU. This is likely to affect current and future workers from the EU who are working in the UK and UK nationals working within other EU countries, who may be subjected to similar and reciprocal restrictions on working rights. We are likely to see greater control of EU immigration, but this will need to be balanced against maintaining trade links with Europe, either as part of the single market or otherwise and the potential impact on migrants from other important trading partners outside the EU – and EEA – such as the US, China and India.
Maria Jockel is the legal principal and the national leader of BDO Migration Services. With over 30 years of experience, she is acknowledged as one of Australia’s leading immigration law specialists. She has shaped Australian immigration law, advising on government policy and legal matters at state and federal levels. Ms Jockel is listed in The International Who’s Who of Corporate Immigration Lawyers (2010-2017) and recognised in the peer reviewed ‘Best Lawyers’ in the areas of immigration law (2008-2017). She is a sought after speaker and lecturer, and a prolific author on immigration and citizenship law. She can be contacted on +61 414 714 626 or by email: email@example.com.
Tom Mintern is an associate in Bird & Bird’s International HR Services Group. Advising on a broad range of employment law matters, he is experienced in both contentious and non-contentious work. He has particular experience in the technology, media, aviation and energy sectors. Mr Mintern’s experience includes drafting and negotiating service agreements, negotiating severances and settlement agreements, advising on the employment aspects of corporate and commercial transactions, handling data protection queries and advising on business immigration matters. He can be contacted on +44 (0)207 982 6519 or by email: firstname.lastname@example.org.
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