The right to work in the UK?

Posted on: March 30th, 2015

A reminder that employers must check all employees’ permission to live and work in the UK.

Organisations seeking to recruit overseas nationals already face a big challenge in avoiding red tape and staying on the right side of the law. Compliance in this area can be a headache, and there are some important issues which HR professionals should be aware of in order to avoid sanctions by the UK Border Agency. For example, under the current regime, employers are required to take on significant responsibility in checking their employees’ immigration status. This article summarises the main recruitment requirements, and highlights some forthcoming changes to the immigration rules.

Checks

The rules state that employers must conduct an initial ‘right to work’ check on all employees to check whether they have permission to be in, and work in, the UK. Employers must not discriminate when doing this and therefore must check all employees’ right to work, not just those they have recruited from overseas.

 Employers must know how to check whether an applicant has the right to live and work in the UK. The Government’s checking service is useful for this and if employers are in doubt, they should seek professional advice.

The key permitted groups who are able to work in the UK are:

  • British nationals
  • European nationals
  • Family members of European nationals
  • Overseas nationals with indefinite leave to remain, or limited leave to remain but with no probation on employment Some, but not all, overseas students (their right to work will be limited during term time).

Unless listed above, an individual will need immigration permission to work in the UK under one of the tiers of the points-based system or one of the other work-related categories (as can be found on the UKBA website). The systems are complicated, but they include for example, Tier 2 which allows employers to sponsor highly skilled migrants for roles they have been unable to recruit to or which are fall under a shortage occupation, and Tier 4 which relates to students. 

Employers must request to see employees’ passports and any other documents (such as a biometric residence permits or immigration status documents) which confirm the individual’s right to work. Organisations have to be satisfied that the documents are in the individual’s name, are valid, and give them the right to live and work in the UK. Importantly, it is a legal requirement that employers must keep photocopies of these documents as evidence that they carried out the check. This is something that Baroness Scotland famously failed to do and was fined £5,000 for employing an illegal immigrant as her housekeeper.

Audits

Maintaining a robust audit trail is essential, so employers should keep copies of all relevant documents and record the date they were checked. Where an employee has limited leave to remain in the UK, employer checks must either be undertaken prior to the expiry of the right to work, or every six months, depending on the type of document they provide as evidence of their right to work in the UK. If employees have no time limit on their leave to remain, employers must keep copies of their documents but do not need to carry out such  further checks.

The risks of getting it wrong are considerable. The penalty for employing an overseas national who does not have the right to work in the UK stands at £20,000 per illegal worker and can trigger criminal prosecution. Ultimately if checks are carried out properly and the required copy documents kept, an employer will be protected from incurring the fine and criminal prosecution.

 Changes

 Home Secretary Theresa May has announced that her department will be simplifying the immigration system for business travellers by reducing the types of visas required for this category of visitor to the UK from the current 15 variations to 4 from April 2015.

  • A Statement of Changes to the Immigration Rules was published on 26 February 2015. The changes being made include:
  • Waiving the Tier 2 “cooling-off period” where the period of time in the UK is three months or less. The cooling off period currently means that where an individual has been granted the right to work in the UK for a set period, and this right has then expired, they cannot reapply on the same grounds for at least 12 months. This change will enable employers to sponsor interns and then bring them back to the UK for a permanent job within a year. It will also help global businesses that need to send employees to the UK for short periods each year.
  • Simplify the existing rules for visitors by creating a simple set of rules and streamlining the current 15 routes down to 4: visitor (standard), visitor for marriage or civil partnership, visitor for permitted paid engagements and transit visitor.
  • Updating annual minimum salary thresholds for Tier 2 to apply, effectively increasing the salary levels which are required for specified roles to fall into the highly skilled migrants category, and appropriate salary rates for individual occupations.

 Amending the Shortage Occupation List to include paramedics, and overhead lines workers (in the energy industry) but removing special neonatal nurses.

 Most of the changes being made will come into effect on 6 April 2015.

With a number of the political parties focusing on immigration issues as the election approaches it is likely that further changes to tighten the immigration system may also be on the horizon.