Generally any nationals of EEA countries may be employed without restriction and other workers must have a work permit to be legally employed – to employ an illegal immigrant carries up to a potential £20K fine (per worker), which an employer may escape if they can show that they undertook reasonable checks. Fake documents are common and employers should reasonably verify that documents are genuine. Copies of evidence should be kept and signed ‘original seen’. Audits should be carried out once every 12 months.
The government sets the number of non EEA nationals who may work in the UK each year and has developed a 5 tier points based system for categorising immigrant workers. The categories range from highly skilled to unskilled and students, with the latter normally restricted during term time to working no more than 10 or 20 hours per week depending on their studies.
Employers may apply to become a registered sponsor of (currently tier 2) immigrant workers to source and recruit scarce skills from outside the EEA. Being a sponsor does carry some responsibilities, such as keeping evidence that they have tried but failed to recruit from within the EEA. Further developments are expected from April 2016.
Typical employment law pitfalls
Fake documents are common and employers should reasonably verify that documents are genuine. Some employers check only the documents for applicants who appear to be ‘foreign’. This can give rise to discrimination claims, which could have been avoided had the employer checked everyone’s details as a matter of routine. Where a worker has a time bound permit to work it is important that employers do not allow employment to run beyond that date, unless an extension has been obtained. An employer will not have a defense against the charge of illegally employing a foreign national if they do not have and retain relevant copies of qualifying documentation proving the worker’s right to obtain employment in the UK. It is a complex area but one that we are equipped to help with.
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