Employing Foreign Nationals. Hiring someone from outside the UK? A criminal offence will be committed where a business employs an individual, and they have a reasonable cause to believe that they do not have the right to work in the UK. You could be fined up to £20,000 if you do not check this.

Businesses have a legal duty to prevent illegal working, and can be subjected to penalties if they fail to comply. So if you have compliance concerns with regards foreign nationals, this post will provide you with answers and official go to links for you to use.

Employing Foreign Nationals. Guidance from the Hive Collaborative.

Employing Foreign Nationals – Brexit

On 31 January 2020, the UK officially left the EU as a result of the 2016 Brexit vote. Therefore new immigration laws came into force from January 1st 2021. The Freedom of movement between between the UK and the EU ended. As a result of this, your HR and compliance requirements have changed. Ensure you understand and implement the new employment law immediately, so you don’t get caught out and risk the £20,000 fine.

Employment rights remain the same post Brexit, except some changes to:

  • Employing EU citizens.
  • Employer insolvency for UK employees working in the EU.
  • Membership of European Works Councils.

In this document we will look more closely at employing foreign nationals, EU citizens and Hiring someone from outside the UK, so you feel confident in applying the process and the new law.

Points-based system Immigration System

A points-based immigration system is now in place. This means:

  • you’ll need a sponsor licence to hire most employees and workers from outside the UK.
  • anyone you recruit from outside the UK will need to meet certain criteria.

Recommendation – You will need to plan ahead if you want to offer a job to someone from the EU, as it is expected to take longer than previously. You will also need separate sponsorship licenses for each prospective employee so we advise medium term recruitment plans are used if you plan to recruit from outside the UK.

Prospective employees from the below categories do not need sponsorship licenses:

  • Individuals with settled or pre-settled status under the EU Settlement Scheme.
  • Irish citizens.
  • Individuals with indefinite leave to remain in the UK.

The majority of EEA and Swiss citizens will need to prove their right to work using the Home Office online right to work service. The EEA includes the EU countries and also Iceland, Liechtenstein and Norway.

Irish citizens have unrestricted access to work in the UK. They can prove their right to work in the UK by using their Irish passport or passport card, or another proof of identity.

Right to Work Checks – Foreign Nationals

It is advised to carry out right-to-work checks in accordance with the Home Office’s three-step stepping process for Foreign Nationals along with your other compliance checks. As mentioned earlier, a penalty of £20,000 per worker may be a result if no due diligence is used in this area.

Recommendation – Make offers of employment conditional, upon the provision of satisfactory right-to-work documentation. Employers should use good practice and check all employees identity documents prior to commencement of work. This includes those of UK residents also. We are able to provide you with employment offer letters and UK employment contracts should you require them.

Checking documents during Covid-19

It’s ideal to simply check the workers original documents at the onboarding stage. If Covid-19 prevents this from happening, e.g. self isolation, remote working, etc., then follow these steps.

  • Ask the prospective employee to send a photograph, or scanned copy of their documents, which proves the individual has a right to work in the UK. These may be emailed, posted, or sent via a mobile app.
  • Arrange a video call , or face to face meeting in which they will present the original documents. The date of this check should be documented on the employees HR file. E.g. Copies seen 01/08/21 / Originals seen 10/09/21.

Migrants unable to provide documents

If a prospective employee cannot produce any of the documents, the employer should consult the Home Office Employer Checking Service.

If an employee has a Biometric Residence Permit or has been granted ‘settled status’ under the EU Settlement Scheme, they can give the employer permission to check their details online.

The Chartered Institute for Personnel & Development (CIPD) have produced a factsheet on employing overseas workers. We thought we’d share this with you. Click the below link to download your own copy. employing-overseas-workers-factsheet_20210824T184459Download

UK Employment Law – Stay compliant and legal.

Paul Deaves. Assoc. CIPD.

Managing Director.

HR @ The Hive Collaborative.

Tel: 01352 781965 | Email: hello@hivecollaborative.co.uk

A member of the Professional Body for HR and People Development.

Accurate as of 24/08/21 – This document may not be up to date. Please contact us for guidance in Hiring someone from outside the UK if you have any concerns.

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