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Employing staff from overseas - a legal guide | |
This article was written by Stephan Weber of Sykes Anderson LLP.
Who is entitled to work in the UK?
(1) Nationals of a pre 1994 member state of the European Union (Austria, Belgium, Cyprus, Denmark, Finland, France, Germany, Greece, Ireland, Italy, Luxembourg, Malta, Netherlands, Portugal, Spain, Sweden and the UK)
(2) Nationals of a pre 1994 member state of the European Economic Area (in addition to the above, Norway, Iceland and Liechtenstein)
(3) Swiss nationals
are generally free to take employment in the UK.
What about nationals of the new EU member states?
Nationals of the eight countries that joined the EU in May 2004 (Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Slovakia and Slovenia, known as “A8”) are generally required to register with the Home Office under the Worker Registration Scheme when they take work in the UK. It is an offence for an employer to employ an A8 national without the employee being registered. Once an employee has been working in the UK legally for 12 months without a break in employment, the requirement to register no longer applies and they can obtain a residence permit confirming their right to live and work in the UK.
Nationals of Romania and Bulgaria (known as “A2” countries) that joined the EU on 1 January 2007 generally must not start working in the UK before they get authorisation from the Home Office. It is an offence for an employer to employ an A2 national without the necessary authorisation.
To obtain authorisation, the employer has to make an application for a work permit for the prospective employee and, once approved, the employee will need to apply for an accession worker card. A work permit is not required for some categories of employees, e.g. domestic workers in a private household; postgraduate doctors, dentists and trainee general practitioners; teachers or language assistants.
What about nationals from other states?
Most nationals of other states are subject to immigration controls and require work permits subject to different eligibility requirements. From March 2008, a points-based system, similar to that operating in Australia, will begin to operate. This is geared to enable the UK to control migration more effectively, tackle abuse and identify the most talented workers. Please see below for a brief summary of the new system.
Which penalties apply under the new law?
From 29 February 2008, the Immigration, Asylum and Nationality Act 2006 will repeal section 8 of the Asylum and Immigration Act 1996 and will introduce two new penalties for employing illegal workers:
An employer will have a defence if the (prospective) employee provides the employer with certain document(s) listed below (which are similar to the documents currently needed to establish a defence under section 8 of the Asylum and Immigration Act 1996). The employer must also:-
Practical steps to take when employing overseas workers
Any formal offer of employment should require the potential employee to produce the necessary documentation to establish their right to work in the UK as a condition of the offer of employment. The employer must check the documents before the employment begins to meet the strict requirements of the statutory defence.
Which documents must an employer check before the employee starts work?
The documents that an employer must see in order to establish a defence to the offence include any one of the following:
Employers should carry out these checks on all applicants, not merely those who appear to be of non-British descent, in order to avoid race discrimination. To help employers, the Home Office has issued a code of practice on avoiding race discrimination in recruitment entitled “Guidance for Employers on the Avoidance of Unlawful Discrimination in Employment Practice While Seeking to Prevent Illegal Working”. Failure to observe the code of practice is not of itself unlawful but may be taken into account by an employment tribunal in deciding whether there has been discrimination.
The new points-based immigration system
The new system will consolidate more than 80 existing work and study application routes and award points to reflect aptitude, experience, the level of need in any given sector and the likeliness that the applicant will comply with their immigration requirements. In tiers 1 and 2, points will also be awarded for attributes such as age, previous salary or prospective salary and qualifications. For each tier, applicants will need to score sufficient points to obtain entry clearance or leave to remain in the UK.
Tier 1: Highly skilled individuals such as entrepreneurs, investors and graduate students. This is designed to replace the Highly Skilled Migrant Programme, the Entrepreneur and Investor Schemes and the International Graduates Scheme.
Tier 2: Skilled workers with a job offer to fill gaps in the UK work force
Tier 3: Limited numbers of low skilled workers needed to fill temporary labour shortages
Tier 4: Students
Tier 5: Youth mobility and temporary workers
All applicants in tiers 2-5 will need to provide a certificate of sponsorship from an approved sponsor when making an application. The certificate of sponsorship will act as an assurance that the migrant is able to do a particular job or course of study.
The sponsor’s rating / track record in sponsoring migrants will determine the number of points applicants receive for their certificate. Employers will need to obtain a license from the Home Office for the particular tier in which they wish to sponsor employees and accept certain responsibilities for their employees to help with immigration control.
Employees whose personal circumstances or route of migration suggests that they present a high risk of breaching the immigration rules will be required to provide financial securities.
Dependants of employees will be allowed under tiers 1, 2, 4 and 5. However, dependants will not be allowed to work where accompanying a student (tier 4) or a temporary worker (tier 5) who has been given less than 12 months leave in the UK.
The new system will be phased in tier by tier. According to the provisional timetable tier 1 will be launched in March 2008, tier 2 and tier 5 are scheduled to be introduced in the third quarter of 2008 and tier 4 will follow at the beginning of 2009.
Please note that this area of the law is a complex subject and you should not take or refrain from taking any step without full legal advice on your particular circumstances. The content of this article is of a general nature and no liability is accepted in connection with it or if any reliance is placed on it.
Posted February 21, 2008
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