According to data from The Migration Observatory, at the time of the Brexit referendum in 2016, non-EU nationals only accounted for 29% of overseas immigration to the UK. In the same report, by 2022 this figure was estimated to have increased to 79% of overseas workers. This means that UK employers wishing to recruit overseas nationals are increasingly having to deal with the Skilled Worker visa process to check employees’ Right to Work in the UK.
While the need to conduct checks is growing more than ever, there have been many changes to the process employers need to follow. With the Home Office able to issue a potential fine of up to £20,000 per illegal worker (this is due to increase to £60,000 from the start of 2024), and even a prison sentence for the most serious cases, it’s more important than ever for employers to understand the process and undertake Right to Work checks correctly.
In this blog, we will look at how to keep compliant with immigration and employment regulations when recruiting foreign nationals.
Understanding Immigration Law
Immigration law refers to regulations that determine who has the right to enter the country, how long they can stay, the conditions in which they can reside/work/gain citizenship and what legal rights and responsibilities they have whilst in the UK. It also governs who is liable to be removed and deported from the UK. A fundamental principle is that all employees must have the ‘right to work’ for their employer in the UK.
Understanding Employment Law
Employment law is legislation that governs the relationship between employees and their employers. It outlines what employers can expect from employees, what employers can ask employees to do, and employees’ rights at work. Complying with employment regulations helps to protect both employers and employees and bring fairness and clarity to the working relationship.
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What is the current Right to Work checking process?
To avoid any kind of financial or criminal penalty when recruiting an overseas national, an employer must obtain the ‘Statutory Excuse’. This is obtained by conducting online right to work checks or conducting manual checks according to the Home Office ‘three step’ checking process. The process involves obtaining the relevant documents, checking the documents and keeping a copy of the documents.
So how do I know what right to work documents to check?
This will vary, depending whether or not the employee is an overseas national who already has the Right to Work in the UK.
From 1 July 2021, all new EU, EEA and Swiss individuals you employ must show they hold valid pre-settled status, settled status or a valid visa to prove their Right to Work.
Overseas nationals who currently have the Right to Work in the UK
Employees in this category will either be Irish Nationals, those with Pre-settled or Settled status or those with indefinite leave to remain.
For an Irish National, conduct a manual check of the passport or passport card – it doesn’t matter if the document has expired, as long as it’s clearly genuine.
For an employee with Pre-Settled or Settled Status, ask the employee to provide you with a share code and use this to check their right to work online on the Home Office website.
What if my proposed overseas worker doesn’t currently have the Right to Work in the UK?
To employ any overseas workers who do not come under the categories above, the employer will need to apply for a Sponsorship Licence before the individual can join the business. Once the licence has been obtained, the employer must assign a certificate of sponsorship to the worker to enable them to make their sponsored visa application to the Home Office. In order to lawfully employ someone via this route, the employer must first check whether the role is listed on the Government’s ‘Skilled Occupations’ or ‘Shortage Occupations’ lists. If not, don’t recruit an overseas worker for your role.
Work Authorisation and Visas
Overseas nationals can be employed in the UK (subject to the restrictions elsewhere in this article) on a variety of work visa types.
There are many different work visa routes available, both short and long-term, under which an overseas national can apply for leave to enter or remain in the UK for the purpose of work.
The UK’s immigration system has both sponsored and unsponsored work visa categories, including:
- Skilled Worker visa – the visa type linked to the Skilled Occupations or Shortage Occupations lists. This category replaced the Tier 2 General visa in December 2020.
- Student visa – overseas students with the Right to work in the UK can work full time during college/university holidays.
- Graduate Trainee visa – this must be an existing employee e.g. someone on an existing Skilled Worker visa and the individual must have worked for the sponsor employer for at least three months before applying to transfer to a Graduate Visa.
- Scale Up Visa – only available if the prospective employer has a valid sponsor licence for the Scale Up route for a ‘fast-growing UK business’, defined as one which has had an annualised growth of at least 20% for the 3-year period prior to application, based on either number of employees or turnover and had a minimum of 10 employees at the start of the 3-year period.
The Points Based system
To be lawfully employed via a Sponsorship Licence, the worker must be able to achieve 70 points under the Home Office’s points-based system. To gain the mandatory 50 points, as a minimum, the worker must be able to demonstrate that they have a valid job offer from an employer with a valid sponsorship licence, the job must be at the required skill level (A level and equivalent) and the proposed worker must be sufficiently fluent in English. Both the Skilled Occupations and the Shortage Occupations lists also state the minimum salary requirements that must be offered for the specific role. If you can’t meet this salary, it’s possible you could still recruit the individual. The Government has set a series of additional points that can add up to the remaining 20 points required but this usually means that the employee must be qualified to PhD level in a subject (ideally STEM-related) relevant to the role.
If the salary level and/or qualification level of your candidate do not meet the stated criteria for the additional 20 points in the points-based system, it is unlawful to recruit them.
The system can seem complicated but there is helpful guidance for employers on the Home Office website.
Right to Work checks must be carried out before the employee starts working. If the documents are checked on the first day of employment and the employer discovers the individual doesn’t have the right to work in the UK, the employer has already committed the offence of unlawfully employing someone.
For training or advice on the topic of employing overseas nationals and carrying out Right to Work checks, contact MAD-HR.