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.

On 31 January 2020, the UK officially left the EU as a result of the 2016 Brexit vote. From 1 January 2021, new immigration law is to come into effect as a result of the end of freedom of movement between the UK and EU. More information on Brexit can be found here.

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. From 1 January 2021, licenses will be required to employ all overseas workers through the new ‘skilled worker route, including from inside the EEA and Switzerland.

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. The Resident Labour Market Test is being abolished from 1 January 2021.

The Home Office and UK Visas and Immigration have issued guidance for employers explaining that, when the transition period ends on 31 December 2020, they will need to have a sponsor licence to hire most workers from outside the UK.

On that date, freedom of movement between the UK and EU will end and the UK will introduce an immigration system that will aim to treat all applicants equally, regardless of their country of origin.

Employers who think that they may want to sponsor migrants through the skilled worker route from January 2021 should consider applying for a licence at https://www.gov.uk/apply-sponsor-licence.

The new system will not however apply to Swiss citizens or to those from the European Economic Area (EEA) countries (the EU Member States plus Iceland, Liechtenstein and Norway) if they are already employed in the UK.

Those living in the UK by 31 December 2020, and their family members, can apply to the EU Settlement Scheme and have until 30 June 2021 to do so.

On 13 July 2020, the government unveiled a new 130-page document outlining more details on how immigration will work from January 2021. It confirmed that there will be three routes in which those seeking to come and work in the UK will be able to do so, which will apply to individuals both from the EU and elsewhere:

• Skilled worker route
• Global Talent Visa
• Start-up and Innovator route.

For more information, please refer to our article. 

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.