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Employing staff from Overseas - you could face a £10,000 fine, so know the law.

publication date: Feb 16, 2009
author/source: Stephan Weber
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There are a number of misconceptions over who is entitled to work in the UK. Nationals of a pre 1994 member state of the European Union (Austria, Belgium, Cyprus, Denmark, Finland, France, Germany, Greece, Ireland, Italy, Luxembourg, Malta, Netherlands, Portugal, Spain, Sweden and the UK) or the European Economic Area (the above plus Norway, Iceland and Liechtenstein) and Swiss nationals are generally free to take employment in the UK. 

Nationals of the eight countries that joined the EU in May 2004 (Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Slovakia and Slovenia, known as “A8”) are generally required to register with the Home Office when they take work in the UK. Once an employee has been working in the UK legally for 12 months without a break in employment, the requirement to register no longer applies and they can obtain a residence permit confirming their right to live and work in the UK. 

Nationals of Romania and Bulgaria (known as “A2” countries) that joined the EU on 1 January 2007 generally must not start working in the UK before they get authorisation from the Home Office. 

To obtain authorisation, the employer has to make an application for a work permit for the prospective employee and, once approved, the employee will need to apply for an accession worker card. 

From 29 February 2008, the Immigration, Asylum and Nationality Act 2006 will introduce two new penalties for employing illegal workers. Up to two years jail and/or an unlimited fine if the employer knowingly employs an illegal worker. The maximum civil penalty is increased to £10,000. An employer can be fined for each person employed illegally. 

An employer will have a defence if the employee provides the employer with certain documents listed below. The employer has duties though. It needs to take reasonable steps to check the validity of the document(s); keep copies for at least two years after the employment terminates; satisfy itself that any photograph(s) in the documents are of the employee; satisfy itself that the employee’s appearance is consistent with any date of birth in the document(s); take all reasonable steps to check that the employee is the rightful owner of the document(s); retain copies of the whole of any document(s) that are not passports or other travel documents; and copy specified pages of any passport or other travel document. An employer cannot rely on the statutory defence if it has made the relevant checks but knows that the individual is not entitled to work in the UK. The employer must check the documents before the employment begins. 

The documents include any one of the following: 
  • A passport showing that the holder is a British citizen or a citizen of the UK or colonies having the right of abode in the UK.
  • A passport or national identity card showing that the holder is a national of the European Economic Area or Switzerland. 
  • A residence permit or a permanent residence card issued by the Home Office or the Border and Immigration Agency to the family member of a national of an EEA country or Switzerland.
  • A passport or other travel document endorsed to show that the holder is exempt from immigration control.
  • A birth certificate issued in the UK which includes the name of at least one of the holder’s parents.
  • A birth certificate issued in the Channel Islands, the Isle of Man or Ireland.
  • A certificate of registration or naturalisation as a British citizen.
  • A letter issued by the Home Office or the Border and Immigration Agency to the holder which indicates that the person named in it is allowed to stay indefinitely in the UK. 

Alternatively, an employer can use any of the following: 
  • A passport or travel document endorsed to show that the holder is allowed to stay in the UK.
  • Or any of the following issued by the Border and Immigration Agency: A Biometric Immigration Document, a work permit or other approval to take employment, a certificate of application, a residence card or document, an Application Registration Card, an Immigration Status Document. 

Employers should carry out these checks on all applicants in order to avoid race discrimination. Most nationals of other states are subject to immigration controls and require work permits. From March 2008, a points-based system will begin to operate. 

The new system will reflect aptitude, experience, the level of need in any given sector and the likeliness that the applicant will comply with their immigration requirements. 

In tiers 1 and 2, points will also be awarded for attributes such as age, previous salary or prospective salary and qualifications. For each tier, applicants will need to score sufficient points to obtain entry clearance or leave to remain in the UK. 

Tier 1: Highly skilled individuals such as entrepreneurs, investors and graduate students. 
Tier 2: Skilled workers with a job offer to fill gaps in the UK work force.
Tier 3: Limited numbers of low skilled workers needed to fill temporary labour shortages. 
Tier 4: Students.
Tier 5: Youth mobility and temporary workers.

All applicants in tiers 2-5 will need to provide a certificate of sponsorship from an approved sponsor when making an application. The new system will be phased in. According to the provisional timetable tier 1 will be launched in March 2008, tier 2 and tier 5 are scheduled to be introduced in the third quarter of 2008 and tier 4 will follow at the beginning of 2009. 

Stephan Weber, trainee solicitor at Sykes Anderson LLP Overseas.