A Guide to Employing Foreign Nationals

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A Guide to Employing Foreign Nationals

Guide to hiring foreign nationals - right to work

This guide applies to right to work checks conducted on or after 28 January 2019.

Under United Kingdom immigration rules, it is a criminal offence to employ a person who is subject to immigration control and who has not been granted leave to enter or remain in the UK or does not have permission to remain in the UK.

The Company has a legal obligation to carry out document checks to make it harder for people with no right to work in the UK to unlawfully obtain or stay in employment. It is also a requirement that the Company retains copies of the relevant documents.

You should not discriminate when conducting right to work checks. You should conduct right to work checks on all potential employees.  Do not simply check the status of those who you feel appear to be migrants, otherwise you could be breaking the law.

You should not make assumptions about a person’s right to work in the UK or their immigration status based on their colour, nationality, ethnic or national origins, accent or the length of time they have been resident in the UK.

You should ask all people you intend to employ to demonstrate their right to work using documentation from the prescribed list of documents (Appendix 1) or by using the Home Office online right to work checking service.  To ensure that you do not discriminate against anyone, you should treat all job applicants in the same way at each stage of your recruitment processes.

You may face a civil penalty if you do not carry out a check on someone you have assumed has the right to work for you but is found to be an illegal worker.

Right to work checks
Compliance with the prescribed right to work checks results in the Company being excused from paying a civil penalty where it is found to have employed an illegal worker. This is referred to as a ‘statutory excuse’. The Company must carry out the checks itself, it is unable to establish a statutory excuse if the check is performed by a third party, such as an independent payroll company.

The Company can rely on the statutory excuse, under the Immigration, Asylum and Nationality Act 2006, if it can demonstrate that prior to the candidate starting employment, it carried out either a documentary right to work check or an online check using the Home Office’s Right to Work Checking Service.

Documentary right to work checks
When carrying out manual documentary checks, the Company will be required to check at least one of a range of documents verifying the individual’s right to work in the UK. The Company must check that the documents are genuine and that the person presenting them is the prospective employee or employee, the rightful holder and allowed to do the type of work the Company is offering.

The documents that the Company may accept are set out in two lists – List A and List B (see Appendix 1).

List A contains the range of documents that the Company may accept for a person who has a permanent right to work in the UK. If the Company conducts the right to work checks properly before employment begins it will establish a continuous statutory excuse for the duration of the person’s employment and it will not be necessary to conduct any further checks.

List B contains a range of documents which may be accepted for a person who has a temporary right to work in the UK. Providing the Company carries out the checks correctly it will establish a time-limited statutory excuse and will be required to conduct follow up checks in order to retain the statutory excuse.

Where an employee has only limited permission to remain or work in the UK, the Company is required to note the expiry date of the documentation and put a reminder system in place to check the documents again prior to expiry.

Should the Company be presented with documents indicating that an individual is a student with a limited right to work in the UK during term time, it must also check and copy evidence of their academic term dates.

The Company must ensure that the verifying documents are originals and that the candidate is the rightful owner of any document presented. For example, is the photograph and date of birth consistent with the appearance of the individual? The Company should also check that the documents allow the candidate to do the type of work that is being offered. Should the Company inadvertently accept a forgery it could be subject to legal action if it is reasonably apparent that the document is false. This means that an untrained person could reasonably be expected to realise that the document is not genuine, or the prospective employee is not the rightful owner.

Lists A and B of acceptable documents, and further detailed guidance, is available from the UK Visas and Immigration (UKVI) website:

https://www.gov.uk/government/publications/right-to-work-checks-employers-guide

Online right to work checks
Where the immigration status of the individuals is compatible, the Company can carry out an online check using the Home Office’s Checking Service https://www.gov.uk/view-right-to-work

In order to carry out an online right to work check, the Company will require the individual’s date of birth and an ‘employee share code’ to be provided by the individual. When this information is inputted into the service, the Company will receive a confirmation page stating whether the individual has the right to work in the UK.

Where the online service confirms the individual has the right to work in the UK, the Company will maintain a record of this confirmation page, which includes the date the check was carried out, in an uneditable format. If the service confirms there is a time limited right to remain in the UK, the Company will be required to carry out a further right to work check in advance of the date of expiry.

Currently, the online checking service supports checks in respect of those who hold:

  • a biometric residence permit;
  • a biometric residence card; or
  • status issued under the EU Settlement Scheme (alternatively, these individuals continue to be able to demonstrate their right to work by presenting their EU passport or ID card until the end of the planned implementation period).

Failure to carry out right to work checks
If the Company fails to carry out the checks correctly, or at all, and is found to be employing someone illegally it could face a civil penalty of up to £20,000 for each illegal worker. Employers who knowingly employ an illegal worker or have reasonable cause to believe that the person has no right to do the work in question, may face a criminal penalty of up to five years’ imprisonment and/or an unlimited fine for employing them.

Home Office verification checks
When conducting checks to verify that someone has the right to work in the UK, the Company is required to contact the Home Office to establish or retain the statutory excuse in the following circumstances:

  • if presented with a Certificate of Application which is less than 6 months old and which indicates that work is permitted
  • if presented with an Application Registration Card stating that the holder is permitted to undertake the work in question
  • where the Company is satisfied that is has not been provided with any acceptable documents because the person in question has an outstanding application with the Home Office which was made before their previous permission time expired or has an appeal or administrative review pending against a Home Office decision and therefore cannot provide evidence of their right to work.

Employees from Europe
All citizens of the European Economic Area (EEA) and Switzerland have the right to free movement in the European Union (EU) countries, and do not require a work permit to come to the UK.

UK nationals and nationals from the following countries are free to work in the UK without any restrictions:

Austria
Belgium
Bulgaria
Croatia (Since 1st July 2018, Croatian nationals are subject to the same rules as all other EU nationals)
Cyprus
Czech Republic
Denmark
Estonia
Finland
France
Germany
Greece
Hungary
Iceland
Ireland
Italy
Latvia
Liechtenstein
Lithuania
Luxembourg
Malta
Netherlands
Norway
Poland
Portugal
Romania
Slovakia
Slovenia
Spain
Sweden
Switzerland

Employers are still required to perform pre-employment checks on these nationals, as detailed above.

Non-EEA nationals – Points-based system
A points-based system applies to all non-EEA nationals. Points are awarded based on a variety of factors including qualifications, aptitude, work experience and income.

The current tiers related to employment are as follows:

Tier 1                     For highly skilled migrants (this route is not currently open to new applicants), investors, exceptional talent or graduate entrepreneurs.

Tier 2                     For skilled workers (e.g. nurses, teachers and administrators) with a job offer to fill shortages in the labour market.

Tier 4                     For students.

Tier 5                     For youth mobility and temporary workers (e.g. volunteers).

A licence to sponsor must be applied for from the Home Office before migrant workers can be employed under the Tier 2 and 5 points-based system.

Further details of the points-based system can be found on the UK Visas and Immigration (UKVI) website https://www.gov.uk/uk-visa-sponsorship-employers

Documentation checks when acquiring a new business
When an employee transfers to the Company under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE), it is the Company’s responsibility to carry out documentation checks to ensure each employee has the right to work and remain in the UK. There is a grace period of 60 days during which the Company must carry out the necessary checks to comply with the regulations.

Where these checks identify that an employee does not have the legal right to work in the UK, they may be dismissed. The Company is also under a duty to inform the Home Office and this will reduce any penalty imposed.

Guidance and codes of practice
Detailed guidance and codes of practice for employers on preventing illegal working, discrimination and managing sponsorship applications can be accessed on the UKVI website. There is also general advice, a relevant documentation checklist and guide on employer checks available.

Although not a legal requirement, the Company will follow any codes of practice. This will be considered by an employment tribunal.

APPENDIX 1
Lists of acceptable documents for manual right to work checks

List A
Acceptable documents to establish a continuous statutory excuse

  1. A passport showing the holder, or a person named in the passport as the child of the holder, is a British citizen or a citizen of the UK and Colonies having the right of abode in the UK.
  2. A passport or national identity card showing the holder, or a person named in the passport as the child of the holder, is a national of a European Economic Area country or Switzerland.
  3. A Registration Certificate or Document Certifying Permanent Residence issued by the Home Office to a national of a European Economic Area country or Switzerland.
  4. A Permanent Residence Card issued by the Home Office to the family member of a national of a European Economic Area country or Switzerland.
  5. A current Biometric Immigration Document (Biometric Residence Permit) issued by the Home Office to the holder indicating that the person named can stay indefinitely in the UK or has no time limit on their stay in the UK.
  6. A current passport endorsed to show that the holder is exempt from immigration control, can stay indefinitely in the UK, has the right of abode in the UK, or has no time limit on their stay in the UK.
  7. A current Immigration Status Document issued by the Home Office to the holder with an endorsement indicating that the named person is allowed to stay indefinitely in the UK or has no time limit on their stay in the UK, together with an official document giving the person’s permanent National Insurance number and their name issued by a Government agency or a previous employer.
  8. A birth or adoption certificate issued in the UK, together with an official document giving the person’s permanent National Insurance number and their name issued by a Government agency or a previous employer.
  9. A birth (short or long) or adoption certificate issued in the Channel Islands, the Isle of Man or Ireland, together with an official document giving the person’s permanent National Insurance number and their name issued by a Government agency or a previous employer.
  10. A certificate of registration or naturalisation as a British citizen, together with an official document giving the person’s permanent National Insurance number and their name issued by a Government agency or a previous employer.

List B
Group 1 – Documents where a time-limited statutory excuse lasts until the expiry date of leave

  1. A current passport endorsed to show that the holder can stay in the UK and is currently allowed to do the type of work in question.
  2. A current Biometric Immigration Document (Biometric Residence Permit) issued by the Home Office to the holder which indicates that the named person can currently stay in the UK and can do the work in question.
  3. A current Residence Card (including an Accession Residence Card or a Derivative Residence Card) issued by the Home Office to a non-European Economic Area national who is a family member of a national of a European Economic Area country or Switzerland or who has a derivative right of residence.
  4. A current Immigration Status Document containing a photograph issued by the Home Office to the holder with a valid endorsement indicating that the named person may stay in the UK, and is allowed to do the type of work in question, together with an official document giving the person’s permanent National Insurance number and their name issued by a Government agency or a previous employer.

Group 2 – Documents where a time-limited statutory excuse lasts for 6 months

  1. A Certificate of Application issued by the Home Office under regulation 18(3) or 20(2) of the Immigration (European Economic Area) Regulations 2006, to a family member of a national of a European Economic Area country or Switzerland stating that the holder is permitted to take employment which is less than 6 months old together with a Positive Verification Notice from the Home Office Employer Checking Service.
  2. An Application Registration Card issued by the Home Office stating that the holder is permitted to take the employment in question, together with a Positive Verification Notice from the Home Office Employer Checking Service.
  3. A Positive Verification Notice issued by the Home Office Employer Checking Service to the employer or prospective employer, which indicates that the named person may stay in the UK and is permitted to do the work in question.

APPENDIX 2
Follow-up Checks

DOCUMENT TYPEEXCUSE TYPEFREQUENCY OF CHECKS
List AContinuousBefore employment starts only
List B – Group 1Time-limitedBefore employment starts and again shortly before permission (as set out in the document) expires
List B – Group 2Time-limitedBefore employment starts and again after six months (as set out in the Positive Verification Notice)

Document Type Excuse Type Frequency of Checks List A Continuous Before employment starts only. List B – Group 1 Time-limited Before employment starts and again shortly before permission (as set out in the document checked) expires. List B – Group 2 Time-limited Before employment starts and again after 6 months (as set out in the Positive Verification Notice).

Online right to work checks

If you conduct an online right to work check and the information provided by the Home Office online right to work checking service indicates that the individual’s right to work is time-limited, you should conduct a follow-up right to work check shortly before that permission (as set out in the online check) expires. If the individual’s right to work is not time-limited, there is no requirement for you to repeat the check.

Contacting the Home Office
If, on the date on which permission expires (as set out in the document previously checked or the information provided by the Home Office online right to work checking service), you are reasonably satisfied that your employee:

  • has submitted an in-time application to us to extend or vary their permission to be in the UK; or
  • has made an appeal or an administrative review against a decision on that application which is outstanding; or
  • is unable to provide acceptable documentation but presents other information indicating they are a non-EEA long-term lawful resident of the UK who arrived here before 1988

your statutory excuse will continue from the expiry date of your employee’s permission for a further period of up to 28 days to enable you to obtain a positive verification from the Employer Checking Service.  This ‘grace period’ does not apply to checks carried out before employment commences.  In such circumstances, you should delay employing the migrant until you have received a Positive Verification Notice from our Employer Checking Service.

If during this period your employee provides evidence that their application, appeal or administrative review has been determined with permission to remain granted together with the relevant acceptable document from List A or List B Group 1, or they provide a share code allowing you to conduct an online check, you may maintain your excuse by checking these documents, or conducting the online check, in the normal way and a positive verification by the Employer Checking Service will not be required.  If, however, the individual presents documents from List B Group 2, you will need to obtain a new Positive Verification Notice from the Employer Checking Service to maintain a statutory excuse.

A letter from a solicitor indicating a successful appeal or administrative review or a copy of a successful court judgment will not provide you with a statutory excuse.

You can reasonably satisfy yourself of a pending application through, for example, a Home Office acknowledgment letter or a Home Office or appeal tribunal reference number, and proof of date of postage.  If your employee cannot provide this evidence, this does not necessarily mean that they have not made an application, appeal or applied for an administrative review.

In-time applications
A person’s application for further immigration permission to stay in the UK must be made before their existing permission expires for it to be deemed ‘in-time’.  If they do this, any existing right to work will continue until that in-time application has been determined.  In such circumstances, a Positive Verification Notice from our Employer Checking Service would demonstrate your statutory excuse for six months from the date of the Notice.

If you receive a Negative Verification Notice in response to your verification request, you will no longer have a statutory excuse and you will be liable for a civil penalty if the person is not permitted to work in the UK.  You may also be convicted of the offence of employing an illegal worker.

It is important that a person makes an application to the Home Office before their permission to be here expires because this has an impact on their right to work.

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Eligibility to work in the UK – A Guide for Staff/Candidates
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