Employers are under a duty to be aware of and to comply with the rules on hiring non-UK national workers.
Getting it wrong can be costly for your business in terms of fines, loss of key talent and reputational harm. Putting certain measures in place, you can ensure you don’t fall foul of unwanted Home Office scrutiny and penalties.
We look at what businesses need to know, from what the end of EU free movement means for employing EU citizens, to sponsoring skilled visa workers and how to check whether an overseas worker has, in fact, got the right to work in the UK.
Right to work
All workers in the UK, regardless of their nationality, must provide employers and prospective employers with documentary proof that they are eligible to work in the UK.
Likewise, all employers are under a duty to obtain, check and maintain records to prove they have verified all employees’ right to carry out their role. Failure to comply with the prevention of illegal working legislation can result in fines of up to £20,000 per illegal worker.
Employing overseas workers: EEA workers
Until 31 December 2020 (the end of the Brexit transition period), citizens of the European Economic Area (EEA) and Switzerland have the right to move to the UK and work here free from immigration control and work restrictions.
To employ an EEA worker, a UK employer must still carry out the standard right to work checks before the employee starts employment, but no further Home Office applications or permissions are required to recruit EEA nationals in the UK.
From 1 January 2021, however, the rights of EU nationals in the UK are set to change when EU free movement ends and a new set of UK immigration rules take effect.
EEA nationals who do not hold UK settled status will become subject to points-based entry criteria in the same way as non-EEA nationals, with eligibility determined by meeting points-based requirements focused on skills, experience and salary level rather than nationality.
Employing overseas workers: non-EEA workers
Overseas workers who are neither EEA nationals nor Swiss citizens are generally subject to immigration control and will be required to make an application to the Home Office for permission to enter and work in the UK.
Applications are made either through the UK points-based system, requiring a minimum number of points for an individual to qualify for a visa, or other routes such as the family visa.
For employers, the main visa route for hiring highly-skilled, non-EEA workers is the Tier 2 (General) visa route.
Tier 2 employees can remain in the UK in their sponsored employment for whichever is the shorter of the following:
- a maximum of 5 years and 14 days
- the period of time stated on their certificate of sponsorship plus 1 month
Their total stay under a Tier 2 visa cannot exceed six years. At this point, they become eligible to apply to settle in the UK with Indefinite Leave to Remain.
The holder of a Tier 2 visa can only work for their sponsor in the job described on their certificate of sponsorship. They can also apply to bring their family with them to the UK as Tier 2 visa dependants.
The applicant eligibility criteria are however strict and there are no guarantees that a visa will be secured even where the applicant is eligible due to the cap imposed by the government on the number of Tier 2 visas that can be issued.
In addition, hiring under the Tier 2 route places onerous administrative duties on the employer, including the requirements to apply for and maintain a sponsorship licence. The employer costs associated with employing a Tier 2 worker can also be prohibitive. For example, in addition to licence fees, sponsorship under Tier 2 incurs an immigration skills charge which as of April 2018 is £364 for small businesses and £1,000 for larger businesses per year per sponsored worker.
Applying for a skilled worker sponsor licence
To be eligible to apply for a sponsorship licence, an employer must prove that:
- they are a genuine organisation who has the legal right to operate in the UK
- their key personnel who are named on the application are reliable, honest and dependable, with no unspent criminal convictions
- they are aware of all of their sponsor duties and are capable of carrying these out in relation to any workers
- they employ
- they can offer genuine employment of the correct skill level for the tier, with appropriate rates of pay
- they do not have a history of failure to carry out sponsorship duties for their workers
- they have all the systems in place that are deemed necessary to monitor sponsored employees
If the application is approved, the employer will be awarded an A-rated licence and be listed on the Home Office register of sponsors.
You may now assign a certificate of sponsorship to applicants before they can apply for their visa.
Renewing your licence
A sponsorship licence is granted for four years. At this point, to continue to hold permission to employ points-based workers, the employer will need to apply to renew their licence.
Employers should be prepared for this to be a more involved process than the initial application. The Home Office take renewals as an opportunity to vet sponsor licence holders and their compliance.
Once the application and supporting documents have been received, the employer may be subject to a compliance visit from the UK Visas and Immigration to assess whether the licence should be granted.
One of the main reasons that these visits take place is to ensure that there are actual employment opportunities available in relation to your sponsor licence, of the correct skill level and with appropriate rates of pay.
The employer must also comply with the illegal working requirements. This means that all non-EU employees must provide documentation that proves their right to work in the UK before they are allowed to take up employment with a UK company, and copies of these documents must be retained by the employer for the length of the worker’s employment and two years after their employment has finished.
Any breaches of sponsor licence duties can result in enforcement action, including suspension, downgrading or even revocation of the licence – impacting the employer’s ability to employ points-based workers.
Sponsor licence management – key personnel
When you make your application for a sponsorship licence, you must state the individuals who will be responsible for the sponsor management duties. These individuals must work for the employer.
The roles you will need to assign are:
- Authorising officer: This should be a senior member of staff who will be responsible for any staff and representatives who use the sponsor management system.
- Key contact: This is the main contact person for communications with UK Visas and Immigration.
- Level 1 user: This person carries out all day-to-day management of the sponsor management system.
The above roles may be fulfilled by one person or more, as is appropriate for the employer. Anyone nominated for these roles, however, must undergo suitability checks.
How legal advice can help
UK immigration rules are set to undergo significant change in the near future. For employers, this means understanding how their legal duties in relation to hiring non-UK workers will be affected.
Failure to meet your duties in respect of immigration compliance can leave your organisation at risk of Home Office penalties.
Taking professional legal advice can ensure you remain compliant and meet your immigration duties while ensuring your recruitment needs are satisfied.