After the Brexit vote and the fall in the value of sterling, it may become harder to entice EU migrants to work within the UK, so there may be even more focus on recruiting people from outside of the EU.
There is often great value to organisations in employing workers from overseas. This approach opens up a useful source of information and knowledge which can be beneficial to the creativity, innovation and productivity of an organisation.
Organisations may choose to employ overseas workers for various other reasons:
- To perform jobs requiring specialist skills (for example, technical or language skills) that are not available in the UK.
- To fill vacancies for hard to attract jobs which the government agrees are in designated ‘shortage occupations’.
- To facilitate secondments or transfers from an overseas division, e.g. for developmental assignments.
- To fill temporary vacancies requiring a pre-existing skill set.
- To fill unskilled or low-skilled vacancies due to labour shortages.
The Law
It is, however, a criminal offence to knowingly employ a person who requires but lacks immigration permission, to be in that role. There is a maximum prison sentence of two years, and an unlimited fine for employers caught in breach. Immigration fines for employing illegal workers by way of the Civil Penalty regime have seen employer fines increase, both in number and value, since their introduction in 2008. Criminal sanctions are aimed at employers who deliberately flout the law in order to exploit vulnerable employees, and undercut legal competitors. The merely careless or negligent will generally be dealt with through a civil penalty. Immigration enforcement teams are carrying out more raids and unannounced visits. The Government’s message is a clear. They will not hesitate to take action against an employer who fails to carry out appropriate right to work checks. The complexity of the rules however, means that many employers are still uncertain of what is required of them.
Since 2016, it has not just been about “knowingly employing” an illegal worker: Employers who have “reasonable cause to believe that the employee is disqualified from employment by reason of the employee’s immigration status” are also in the authorities’ sights.
Employers have to pro-actively check and copy specific original documentation for any new employees. The Government issues guidance which sets out when checks must be made, what employers need to do, including tips on how to check authenticity, and what to photocopy and retain. Checks must be completed before employment begins, but re-checking is also required for employees with time-limited immigration status. These document checks should be carried out for all prospective employees regardless of nationality – UK or otherwise.
Checklist
Here are 10 useful tips to prevent your business from having a civil penalty imposed, or to assist you in challenging a decision made against you.
- Ensure that your right to work processes are updated.
- Complete your right to work check before employment. If a prospective employee fails to present their documents prior to, or on, their first day of employment, you should delay their start date until such evidence is provided.
- Check the original documents in the presence of the holder. Do not accept copy documents, and be cautious of delaying tactics by a prospective employee. If documents are not presented, employment should not commence.
- All documents produced, e.g. passports and visa copies, must be on the acceptable documents checklist, known as List A and List B, published on the Government website. Do not accept any other documentation. When you are completing a check, be certain that the prospective employee does have a right to work by checking their visa status. If you have any doubt, consult an immigration expert.
- Copy all visa pages in passports, plus the photographic page and/or both sides of the Biometric Residence Card that is presented to you. All Biometric Residence Cards should specify whether or not work is permitted. Be mindful of restrictions related to students.
- Sign and date the document to confirm when your right to work check is complete. If you do not specify a date on the document copy, you should record the date of your check in a form that can be clearly identifiable by the Home Office, if requested.
- Keep records of all documentation for the duration of the individual’s employment. This is what will give you a statutory excuse, and a defence to challenge if faced with a penalty.
- Track and monitor visa expiry dates, and request an employee’s updated document where there is a time limit. It is good practice to request an updated document at least three months before expiry to give you a head start on the process. If an employee cannot provide an updated document, you must not continue to employ them.
- Take advantage of the Home Office Employer Checking Service if your employee has a pending application or appeal against an immigration application decision. Be aware that you can only complete this process if you have a case identification number provided by the employee.
- If you suspect an employee is working illegally, or has provided you with a false document, or a genuine document that does not belong to them, you should contact the Sponsorship, Employer and Education Helpline to report the incident. If you do not employ the person and you report this incident, you will not be liable for a civil penalty.
Any checks that are made should be done in a non-discriminatory manner in accordance with Government guidance, which recommends that all job applicants should be treated in the same way. (See below).
Sponsorship
While it was not too difficult in the past for a highly skilled individual to immigrate to the UK without a job offer or sponsorship from an employer, the UK Border Agency (UKBA) has recently closed this route to overseas applicants.
The UK Government still allows employers to sponsor overseas workers via the Tier 2 (general) visa. The sponsorship process involves an employer being approved by the UK Border Agency to hire overseas workers by being granted a Sponsorship License. This grants the employer the ability to issues Certificates of Sponsorship to overseas workers that the employer wishes to hire.
An organisation must meet certain requirements to sponsor migrant workers, including but not limited to the following:
- It must be a genuine corporate entity operating legally in the United Kingdom.
- It must not be a threat to immigration control.
- It must designate a contact person who is an authorising officer for the sponsorship management system.
- It must have an HR infrastructure in place to deal with immigration control.
- It must provide all relevant supporting documents when applying.
Prior to making any overseas appointment, first of all you need to prove that the vacancy cannot be filled by UK employees by advertising the job you’re offering. This is known as carrying out the ‘resident labour market test’. You must place at least 2 adverts, which must run in the UK for 28 days in most cases, either continuously or in 2 stages.
If you advertise in 2 stages, each advert still needs to run for a total of 28 days and neither stage can be less than 7 days. You have to show that you didn’t find a suitable worker.
All of the above requirements can be of particular concern for smaller organisations on a budget that may not have the resources to deal with all the requirements for sponsorship licensing. Alternatively, you can use specialist immigration solicitors, such as Birketts or Gross & Co., or there are specialist companies that will do all of this for you, albeit either outsourcing option comes with a financial cost, but with major savings in management time and stress!
Discrimination Law
The processes which employers are required to follow to protect themselves against an unfair dismissal or race discrimination claim, do not sit comfortably alongside an immigration regime which penalises employers who know, or should have known, that an employee did not have the right to work in the UK. To avoid claims of unlawful discrimination (and to ensure good recruitment selection), you should have:
- A clear job description and person specification setting out the skills and experience you are looking for.
- A standard set of interview questions, which are asked of all candidates, and you should document the answers given. This makes it easier to provide objective reasons why a candidate has been unsuccessful.
- Training in recruitment and good interview techniques.
- A very good reason to make a recruitment decision on the basis of an applicant’s race. Typically, this would occur where it is an occupational requirement of the specific role that the applicant is of a particular race, or speaks a certain language. Situations where such a decision can be lawful are very limited.
Expired Visas
Under the Immigration, Asylum and Nationality Act 2006, employers have a duty to conduct follow-up checks on employees whose employment began after February 2008 where, at the time of recruitment, the employees in question have been granted only limited leave to remain and work in the UK. A follow-up check is normally required when an employee’s permission to live and work in the UK expires.
In two recent cases, it was found that the employer was right to conclude that the requirement for employees to show that they have the right to work lawfully in the UK takes precedence over ‘normal’ employment laws. As this could not be shown the employer was entitled to terminate employment. In both cases, the careful process followed by the employer was scrutinised and held to be a key factor.
Practical Points
Offering roles to foreign nationals can be problematic so:
- Offers of employment should be conditional on the employee being granted and maintaining the necessary permission to carry out the role for which they will be employed in the UK if they are not an EU citizen.
- Employment should be conditional on the employee maintaining immigration permission and terminated summarily if the employee cannot do so (see below for more detail). Employees should also be required to report changes in their personal details, including immigration status.
- Ensure that attention is paid to the induction and orientation of the overseas worker to allow that individual to become an effective part of the organisation.
Knowing how and when it is appropriate to treat foreign national employees differently from your UK national or EU employees is not always easy. Ideally, you should treat them in the same way. But remember that recruitment, TUPE transfers and termination of employment are three key areas where the visas that foreign national employees hold may give rise to particular issues that can affect business practice.
EEA Nationals
There has been a surge of EEA nationals applying for permanent residence cards. This means completing a long form and supplying supporting documentation. An online service for permanent residence applications became available from October 2016. Online applicants can make an appointment to submit their paperwork via certain local authorities (including Cambridgeshire). They cannot advise on draft applications, but after an application is submitted they will be able to copy and return the passport immediately.
See: https://www.gov.uk/government/collections/european-passport-return-service.
It is important to keep abreast of the regular changes to immigration policies that continue to make the channel for employing non-EEA workers more restrictive. The potential criminal liability, and negative publicity that come with negligent employment, is likely to be of a greater concern to employers than the risk of an unfair dismissal or discrimination claim but it ought to be possible to avoid both.
The Future
Recent figures suggest that the number of EU migrants coming to work in the UK is falling, which may be bad for UK productivity if employers cannot fill vacancies. In a tight labour market, it will remain important to find capable and motivated staff. The desire to fill vacancies must not lead employers to take short-cuts or risks. Finding the right people is important, but so is ensuring that they can legally work here. Beyond that it is essential to retain staff of all nationalities by providing a good working environment with good pay and conditions of employment.
Current immigration rules have received great criticism from employers for being too inflexible to meet real-world business needs. The Government has pledged to seek independent consultation to improve the current visa system, and its alignment with UK business. In time, this may result in changes to existing entry routes, or the emergence of new types of visa route that support specific needs. The Conservative manifesto pledged to double the recently-introduced Immigration Skills Charge on employers of skilled, non-EU workers who earn more than £30,000. It may choose to do so, but their most recent commitment to listen to business concerns about Brexit and the need for appropriate immigration may change that commitment. Whatever the future, employers should expect additional costs and administration around hiring EU nationals following the impending removal of freedom of movement.
We hope that these decisions come sooner rather than later to enable businesses to move ahead confidently. However, at the time of writing this article it would not appear that Brexit negotiations have got anywhere close to dealing with the free movement of EU nationals, or not, so the future is still far from clear.
Clients are welcome to raise concerns with their Consultant who will be pleased to advise you on any element of the issues arising from this newsletter.
