Guest Blog by Sophie van der Singel
Many UK businesses are heavily reliant on foreign staff to fill both short- and long-term vacancies. If this is you, and you do recruit foreign nationals within your business you must follow UK employment legislation to the letter, or it could cost you significantly.
Penalties for employing individuals without the right the work in the UK
It is a criminal offense to knowingly employ a person without the right to work in the UK. This means that as an employer you wouldn’t just risk your business being fined for such misconduct, you could be held personally accountable and penalised with imprisonment.
You can be sent to prison for up to five years if you are found guilty of knowingly employing someone that did not have the right to work. In addition, you could also receive unlimited fines.
Recruiting foreign nationals lawfully
Before offering employment to any person, British or otherwise, you should always make and keep a copy of the applicant’s identification. If the applicant is not a British citizen, you will additionally need to check their right to work in the UK by checking their immigration status.
If the applicant does not yet have to right to work in the UK, or more specifically; does not yet have the right to do the job you are offering you may want to consider sponsoring the employee for a work permit.
To be able to sponsor an employee for a visa you must first apply for a visa sponsorship licence. You are eligible for such a licence as long as your business does not have any unspent criminal convictions such as money laundering, previous immigration offences or a history of poor conduct in regard to a previous sponsorship licence.
There are two types of sponsorship licences that you can apply for; a sponsorship licence to recruit and hire Tier 2 – Skilled workers (long-term employment) and a Tier 5 – Skilled temporary workers licence. Which of these options is most appropriate for you will depend on the needs of your business.
Checking the applicant’s documentation
As an employer you are responsible to check that each of your employees has the correct documentation to be allowed to work for you. To do so you must always ensure you have seen the employee’s original documents such as identification during the job application process.
You will have to check the documents with the applicant present and you must make and keep a copy of each document together with a record that you have completed this checking process.
When you are analysing the documents provided to you by the applicant you should pay specific attention to the state of the original documents. Are they genuinely original, unchanged documents that belong to the applicant in question?
Visas and passports can easily be checked on validity by checking that the expiry date on these documents. As an employer you must ensure that neither document has expired or is due to expire. If a visa is due to expire you will need to ensure that you receive new proof of the employee’s right to work prior to the visa expiry date of the current visa.
If you allow an employee to continue work without obtaining this new proof, you could be seen to have had reasonable knowledge the employee was working for you illegally. As a result, criminal charges could be filed against you.
Lastly, you must check that the applicant has the right to fulfil the vacancy they have applied for. There are stringent limitations to what type of work can be carried out by holders of certain visas which you will need to be aware of.
For example; a foreign student on a Tier 4 General visa can work in the UK legally, however they must not fill a full-time permanent vacancy, they must not be self-employed, and they must not be employed as a doctor or dentist in training.
Setting up your business for the recruitment of foreign workers
Clear processes must be followed to ensure you follow UK employment and immigration law, as failure to do so can cause a meaningful backlash on both yourself and your business.
Depending on the number of employees you recruit, the percentage of foreign workers you employ or are planning to employ and the human resource support you have available to you, it may be advisable to work with legal specialists, immigration solicitors or international recruitment advisors to ensure your business is fully compliant.