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Foreign nationals

Overview
Osborne, Andrew - Lewis Silkin LLP
Overview

It is a criminal offence for any officer, manager or senior employee in an organisation to employ someone whom they have ‘reasonable cause to believe’ is an illegal worker (see ‘Recent developments’ below).

Employers should make an offer of employment conditional on the job candidate's right to work in the UK. The employment contract should also make it a requirement that employees provide documentation of their right to work in the UK. The Home Office guide for employers on preventing illegal working includes lists of documents that are acceptable as evidence of this right.

An organisation may need to sponsor a migrant worker. If so, it must obtain a sponsor licence from the Home Office which allows it to issue certificates of sponsorship to overseas workers. Workers use the sponsorship certificate to apply for a visa to work in the UK.

When an organisation applies for its licence, it must demonstrate it has the necessary HR and management systems in place to meet record-keeping, reporting and compliance duties imposed by the Home Office. The most important of these is a document-checking system that ensures organisations do not and will not have any illegal workers. Employers must also have the means of keeping contact details for sponsored migrants up to date, as they must notify the Home Office if a sponsored migrant is absent from work for 10 working days without permission.

An organisation does not necessarily have to sponsor a migrant in order to employ them. Some migrants already have the right to work in the UK, including most dependants.

Future developments

New legislation
Regulations introducing the following provisions came into force on 12 July 2016 via the Immigration Act 2016:
  • extends the existing criminal offence of an employer ‘knowingly’ employing an illegal migrant to having ‘reasonable cause to believe’ an employee is an illegal worker
  • raises the sentence for knowingly employing an illegal worker from two to five years’ in prison
  • creates a new offence of illegal working, so illegal workers assets can be seized
  • provide the power to introduce an ‘immigration skills charge’ on employers sponsoring workers from outside Europe
  • introduces a new requirement for public sector workers in customer-facing roles to speak fluent English
  • creates a new role of Director of Labour Market Enforcement.
New guidance on carrying out ‘right to work’ checks was published on the same date.

 

Changes to Tier 2 under the UK’s visas and immigration rules came into effect on 24 November 2016:

  • Tier 2 (general) salary thresholds for experienced workers increased to £25,000

  • Tier 2 (intra-company transfer) salary threshold for short term staff rose to £30,000

  • Tier 2 (intra-company transfer) salary threshold for graduate trainees reduced to £23,000 and the number of places allocated per company rose to 20 a year

  • Tier 2 (intra-company transfer) skills transfer sub-category closed.

In April 2017, an immigration skills charge of £1,000 a year (£364 for organisations with fewer than 250 employees) was introduced for Tier 2 (general) visas, along with an immigration health surcharge (£200 per transferee) for Tier 2 (intra company transfers) visas. The health surcharge, introduced in 2015, already applies to a number of other immigration categories.

The government has also published a code of practice on the new requirement under the Act for all public sector staff in public-facing roles to speak English (or Welsh) fluently enough for “the effective performance of their role” (language requirements already exist for doctors and teachers).