Employing Foreign Nationals – How To Get It RightPosted: 10th August 2021

The Immigration Act 2016 allows Civil and Criminal Sanctions to be imposed on Employers who knowingly employ individuals who do not have the legal right to live and work in the UK.

Civil penalties include fines of up to £20,000 for each individual employed. Criminal Penalties include prison sentences of up to 5 years. There is also reputational damage to consider too so the importance of understanding the pitfalls and how to avoid them cannot be overstated.

This blog concerns the employment of individuals after 16 May 2014 only. Different rules apply to individuals employed before then

Your Obligation to prevent Illegal Working

Employers must carry out “right to work” checks on individuals before they start working and carry out follow up checks for any individual who has only time limited permission to work in the UK. Employers must also ensure they keep records of all checks carried out and that they do not employ anyone they know or have reasonable grounds to believe is an illegal worker.

Employers who use Agency workers should ensure the Agency which supplies them has responsibility for performing the right to work checks.

The Right to Work Check

The Home Office has produced a template checklist which all Employers will be find useful but essentially this is a 3 step process which involves an Employer.

  1. Obtaining the individuals original documents. These are prescribed by the Home Office and include passports, national identity and biometric residence permit or card numbers.
  2. Checking that the documents are genuine i.e. that they are valid originals which have not been altered. The checking should be accrued out in the presence of the individual so that verification of identity can be carried out more reliably and also to enable the individual to be questioned on their authenticity if needs be. Photographs should be checked for consistency with the appearance of the individual and employers should ensure dates of birth are consistent across all documents. For any students to carry out work checks should be made with the education establishment they are associated with to confirm they are entitled to work the hours proposed. Checks should also be made to ensure that the work proposed for the individual is work which is not restricted by their documentation.
  3. Taking copies of the documents obtained at the time they are inspected and keeping these safe and secure .Electronic copies can be taken provided that it is in a format which cannot be changed eg PDF format. Copies of passports can be limited to copies of those pages giving personal information or showing any UK endorsements.ID documents should be kept secure for as long as the individual works for the employer and for 2 years afterwards.

(Note also that until 31st August 2021 and as a result of COVID-19 restrictions employers can conduct checks via a video call. This involves the individual sending their documents electronically and then presenting the original documents to the camera in a subsequent video call).

( Note also that for non EEA residents who have a biometric residence permit or card or EEA nationals who have settled or pre settled status an optional online checking system is available).

( Note also that Sponsors of Skilled and Temporary Workers are required to provide additional checks)

Categories of Documents

The Home Office recognizes 2 categories of documents an Employer will need to see.

1. List A Documents

These are documents applicable to individuals with a permanent right to work in the UK

2. List B Documents

These are documents applicable to individuals who either have only a temporary right to work in the UK ( in which case the right to work ends when their permission ends) or who need to provide further evidence of their right to work, ( in which case permission to work cannot be more than 6 months).

For those individuals who can only produce documents from List B an Employer will be required to conduct follow up checks to ensure employment can continue lawfully.

Brexit

In the case of EEA citizens arriving to work in the UK from 1st July 2021 Employers will need to obtain evidence of immigration status in addition to their passports. This will require an Employer to obtain evidence of that individuals eligibility under the EU Settlement Scheme ( which protects EEA citizens living in the UK for 5 years or more at 31/12/2020), or under the new ‘points based’ immigration system

For more information regarding employing workers from outside the UK, please contact out Employment specialist Graham Shannon on 0191 323 3932 or email him at [email protected].