The Employer’s Rough Guide to Immigration
Pop star Lily Allen recently made the gossip columns when it was rumoured that she had been refused entry to the US and had her working visa removed following an alleged fight with a photographer. Lily now has to obtain the necessary visa documentation before her American tour can start this month.
Although Lily’s situation may not be the same as your average employee, the news serves as a useful reminder to employers who need to ensure that their employees have the right to work in the UK. If they do not, they may be facing a criminal prosecution resulting in a fine for each illegal worker they employ.
What documents should I obtain from my employees?
When recruiting a new employee, an employer should always ensure that the employee has the right to work in the UK. This is because, as an employer, you are provided with a statutory defence from conviction if you check and record certain documents belonging to potential employees.
The Home Office specifies a list of documents which an employer must obtain to provide itself with a defence. However, the easiest way to satisfy this requirement is by requesting to see the employee’s passport. For your records, you should take a photocopy of the photo section of the original passport to confirm that they are a British citizen or a citizen of one of the countries belonging to the European Economic Area (EEA)*.
* Please note there are exceptions applicable to certain countries within the EEA.
What is my liability if I do not check employees right to work?
If an employer does not check an employee’s documentation, under current legislation both the company or the individual officers may be liable for a fine of up to £5,000 for each illegal worker. Perversely, the law does not place a continuing obligation on the employer to conduct future checks. However this area of the law is currently under review. There will soon be a separate civil penalty and criminal offence of knowingly employing an illegal worker. Those charged under the civil penalty can expect to pay a fine but if an employer is suspected of knowingly employing an illegal worker, the court will have the option to imprison an officer of the company.
There are various types of permit that an employee can obtain. However the three most common permits are summarised below.
This is granted when someone is visiting the UK to transact business, for example, attending meetings or negotiating contracts but is not wanting to work in the UK. If the employee is intending to work then the employer should ensure that they have secured permission to do so by way of a work permit. Whilst in the UK, the worker should continue to receive a salary from outside the UK and should have no intention to base themselves here, even temporarily.
Leave will be granted for no longer than six months and to obtain entry, the visitor will need to be able to show they are intending to leave within this period. The easiest way to show this is by having a return ticket for the immigration officer on entry into the UK.
If a worker is from outside the EEA and wishes to work in the UK then it is likely that they will require a work permit. To succeed with a work permit application, the Home Office will require evidence that the person will be employed by a UK based employer. A work permit will not be issued for someone who is undertaking self-employed activities.
There are two types of applications that can be made which are known as Tier 1 or Tier 2 applications. Tier 1 applications are most common for intra company transfers and allows skilled employees of multi national companies or people in senior board level posts to be transferred to a role in the UK. The advantage of this application is that the company is not required to have completed a recruitment search in the UK prior to the application, which is required with a Tier 2 application.
Tier 2 applications are required for all other applications and for this, the employer will need to have conducted a recruitment search to show that there is no other suitable employee available from the UK or the EEA. In order to do this the employer must advertise the post for at least four weeks in a medium which is readily accessible in the EEA (for example, a national newspaper) and be able to demonstrate why the applicants were unsuitable for the role.
A permit can be for up to 60 months but is only granted to allow the employee to work for that specific employer. If an employer wishes to employ someone who already holds a work permit, they will need permission from the Home Office to transfer the employment before taking the employee on, otherwise they will be working illegally.
Highly Skilled Migrant Programme
Whereas the work permit application is made by the employer, an HSMP application is made by the individual and if granted, allows them to work in the UK for any employer or be self-employed. It is therefore a desirable permit for employers and employees alike.In order to be secure this permit an individual needs to obtain ‘75 points’ across a series of categories. These include academic qualifications, previous earnings, age and English language ability.
The HSMP will initially be granted for two years following which the applicant can re-apply for further leave to remain for another three years. However, to obtain the extension, they will need to demonstrate they can still meet the ‘75 point’ requirement.Immigration is a political, topical issue and with government reforms coming into place, employers are warned to ensure that their recruitment process includes a check of an employee’s immigration status as a matter of course. With such press interest in this area the government are being forced to take this issue very seriously.