Foreign nationals

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.

UK Visas and Immigration (part of the Home Office) has issued information to help employers prepare for the UK’s new points-based immigration system which is planned for 1 January 2021 when the UK leaves the EU and free movement will end.

Available at https://www.gov.uk/government/publications/uk-points-based-immigration-system-employer-information/the-uks-points-based-immigration-system-an-introduction-for-employers, the new guide covers a range of issues including what will happen to EU citizens already living in the UK and how to define “skilled workers”.

The guidance includes some skilled worker case studies such as: a graphic designer coming to the UK under the new points-based system earning £23,000; and a production manager coming to the UK under the new points-based system earning £28,000.

It also explains how to become an improved sponsor and advises employers not currently approved by the Home Office to consider applying now if they think they will want to sponsor skilled migrants, including from the EU, from early 2021.

Details are also provided of the fees and the visa process.

In light of the 2020 coronavirus outbreak, from 30 March 2020 employers can adopt a revised process for checking right to work.

Government guidance confirms that a scanned copy or photograph of documents necessary to prove a right to work (as outlined in our in depth section) should be sent to the employer via an email or mobile app. A video call should then be arranged with the worker, where they should be asked to present their original documents to the camera. These documents should then be compared with the digital versions previously sent. The date of this check should be recorded and noted as "adjusted check undertaken on [insert date] due to COVID-19".

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

When the coronavirus crisis ends, the date of which is currently unknown, a retrospective check should be carried out on employees who started working for the company, or required a follow-up check, during these measures. This check will need to be carried out within eight weeks of the crisis ending and be marked "the individual's contract commenced on [insert date]. The prescribed right to work check was undertaken on [insert date] due to COVID-19."

If during the retrospective check it is found that the employee does not have the right to work in the UK, they should be dismissed immediately.

For organisations that have been deemed an essential business, a usual check can still be conducted, however the validity of documents check can be done via video link provided the employer has the original documents.

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.

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.

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.

Under these proposals, individuals who seek to come and work in the UK following the end of free movement on 31 December 2020 will need to meet certain criteria or have a minimum of 70 points. Generally, the job will need to be providing a salary of at least £25,600, aside from in certain areas where skills shortages have been identified. For example, those seeking positions in nursing may be able to apply for roles offering a minimum of £20,480.

Points are expected to be awarded in the following ways:

• Job offer from an approved sponsor - 20 points
• Job at an appropriate skill level - 20 points
• English language to a required level - 10 points
• Job with salary of £25,600 or above - 20 points
• Job with salary of £23,040 and £25,599 - 10 points
• Job with salary of £20,480 to £23,039 - 0 points
• Job in a shortage occupation - 20 points
• PhD in a relevant STEM subject - 20 points
• PhD in a subject relevant to job - 10 points

Whilst these proposals may be subject to change until an Immigration Bill is introduced, they so show that there is a move towards reducing the number of low-skilled labour from overseas.

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. 

It 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.