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Foreign nationals

Overview

Organisations are placed under a legal duty to prevent illegal working and can be subjected to penalties where they fail to do so. A criminal offence will be committed where an organisation employs an individual and they have ‘reasonable cause to believe’ they do not have the right to work in the UK.

To gain a statutory excuse against a civil penalty fine of up to £20,000 per worker, organisations are advised to carry out right-to-work checks in accordance with the Home Office’s three-step checking process. Organisations are encouraged to make offers of employment conditional upon the provision of satisfactory right-to-work documentation to ensure they secure the statutory excuse.  

From 29 January 2019, organisations can rely on the Home Office’s online right to work checking service to be granted the statutory excuse. Where the service can be used to check an individual’s immigration status, no further documentary checks will be required.

Organisations may also require a sponsorship licence to sponsor migrant workers from outside the EEA, and Switzerland, under the points-based visa system. Specific requirements will have to be met to achieve a licence and sponsor organisations will have to meet sponsorship duties, including keeping records and complying with immigration laws.  

Before sponsoring certain migrants under the Tier system, organisations will have to carry out a Resident Labour Market Test to find a suitable settled worker for the role, or pay an Immigration Skills Charge for each certificate of sponsorship.

This area of employment law may be subject to future changes dependent on the ongoing Brexit negotiations. More information on Brexit can be found here.

Future developments

Immigration Bill 2017-19 to introduce standard policy from 2021

From January 2021, the government will implement a standard set of rules applying to all non-UK workers, regardless of their nationality. Freedom of movement for EU and EEA nationals will end, although Irish citizens will continue to be free to travel to the UK under the Common Travel Area.

There will be a route for temporary short-term workers who arrive to work in the UK for up to 12 months, and a skilled route for workers wishing to remain and work in the UK long-term.

This new policy will take effect after the transition period ends following the UK's removal from the EU. More information on Brexit, and the potential implications, can be found on our employment law page.

Number of visa changes announced

Changes to the Tier 1 visa scheme has seen the closure of the Entrepreneur and Graduate Entrepreneur visas, with the creation of two new potential pathways; the 'innovator' and 'start up' visas.

The Home Office has confirmed they will be extending the existing Tier 2 general salary exemption to include crucial roles such as nurses, paramedics, medical secretaries and certain secondary school teachers. This means foreign nationals seeking jobs in these categories will only need to meet a minimum salary of £20,800 per year as opposed to £30,000 in order to be eligible to work in the UK. 

Tt was revealed as part of the 2019 Spring Statement that foreign nationals applying for PHD level roles will be exempt from the UK’s annual visa cap of 20,700 from Autumn 2019.