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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.

Immigration Health Surcharge fees to double

Non-EEA and Swiss nationals who apply for a visa entitling them to live and work in the UK for a period of more than six months are required to pay the Immigration Health Surcharge for themselves, and any dependants.

The current rates of the surcharge are £150 per year for a student or Tier 5 visa and £200 per year for all other applications. The Government announced that, from December 2018, these rates will double for all applications. However, the increase did not actually take effect until 8th January 2019.

More information on this issue can be found in our in-depth section on the Immigration Health Surcharge.