Employing overseas workers

28 April 2005
Employing overseas workers

Can I employ workers from overseas? Whether or not a worker from overseas can be employed depends on the nationality of the worker.

Can I employee workers from Europe?

EEA nationals are entitled to the same treatment as UK nationals with regard to:
•Working conditions
•Access to housing and property
•Training, safety and security, and
•Trade union rights.

If workers wish to stay longer than six months, they may apply for a residence permit.
The Government is currently operating a Workers Registration Scheme to monitor participation in the UK labour market of workers from the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Slovakia and Slovenia. Any employer who recruits a person from one of these countries must ensure that the employee registers with the Home Office.

What about non-EU workers? Non-EEA nationals are subject to immigration controls and must obtain work permits in order to be able to take up employment in the UK. Certain limited categories of persons do not require work permits. These include:
•Business visitors
•Commonwealth citizens who have been given leave to enter or remain in the UK on the basis that at least one of their grandparents was born in the UK
•Commonwealth citizens with a parent who was a British citizen and who have the Right to Abode in the UK
•Persons with indefinite leave to remain in the UK (for example, after four continuous years in approved or permit-free employment)
•Persons admitted to the UK for a period of at least 12 months as students are entitled to work part-time (up to 20 hours a week) during term time, and full-time during vacations.

Which workers are eligible for a permit? Permits are normally issued only in respect of individuals who have the following specified skills:
•A UK-equivalent degree-level qualification
•An HND-level occupational qualification
•A general HND-level qualification plus one year's work experience in the type of job for which the permit is sought
•High-level or specialist skills acquired through doing the type of job for which the permit is sought for at least three years.

Is it up to the employer to get the permit? If an employer wishes to employ a foreign national, it must first apply for a work permit on his behalf. There are two main types of application: Tier one and Tier two. Applications should be made on Form WP1 (applications forms and guidance notes are available on the Work Permits UK website at www.workingintheuk.gov.uk).
The general criteria are:
•The employment falls within the categories set out in the paragraph above
•A genuine vacancy exists
•There is no suitable resident labour available to fill the post offered (not for Tier 1 applications - see below)
•The employer has made adequate efforts to find a worker from suitable resident labour or from other member states of the EEA (not for Tier 1 applications - see below)
•The application is for a named worker for a specific post, and
•The person is suitably qualified or experienced.

Tier one Applications can be used if the post meets the skills criteria and one of the other following conditions applies:
•Intra-company transfers - an employee of a multi-national company is transferring to a skilled post in Britain
•The post is at board level
•The post is new and is essential to inward investment
•The post is an occupation recognised by the Work Permits Agency as being in short supply.
Tier one applications do not need to be supported by evidence of educational qualifications and reference, and need not be advertised in advance.

Tier two Tier two applications are standard work permit applications requiring proof of qualifications and experience, evidence of employment history and details of recruitment search.

Do I have to prove that I cannot get any UK workers to do the job? If the Tier two application system is used, an employer must:
•Consider carefully whether the vacancy can be filled by the promotion or transfer of an existing worker
•Advertise a vacancy in local and national press and in appropriate trade and professional journals - the publications used must be available throughout the EEA;
•Send copies of any advertisements with the application for the permit, and give full details of the results of such advertising.
A full explanation must be given if the employer considers that it would be unproductive to search the resident and/or EEA labour market.

What is the procedure for making an application? The employer should submit an application on form WP1 for a work permit no more than six months before the permit is required. Employers are requested to submit applications at least four weeks before the permit is required. If an application for a work permit has not been made in the previous four years, the company must send specified documentation to show that it is a trading company.
•When an application is approved, the work permit is issued to the employer, who is responsible for forwarding it to the worker concerned.
•Permits are issued for up to five years.
•When the worker arrives, they must present the permit, together with a valid passport, to the Immigration Authorities.

What about asylum seekers - can I employ them? An asylum seeker must apply to the Home Office for permission to work. Before employing an asylum seeker, an employer should ensure that its official documentation has been stamped, showing permission to work.

What happens if I do not obtain the necessary work permits? It is a criminal offence to employ a person who is subject to immigration control and does not have permission to live or work in the UK.

What checks do I have to make? An employer has a defence if it checks that the potential employee is in possession of one or more of a range of documents. Acceptable documents include:
•A passport confirming the person is a British Citizen
•A passport or identity card of an EEA National, or which otherwise shows entitlement to live and work in the UK
•A UK birth certificate
•An application registration card issued by the Home Office to an asylum seeker stating that the holder is permitted to take employment.
Further guidance is contained in the Home Office booklet Prevention of Illegal Working - Guidance for Employers. The defence is not available if the employer had actual knowledge that it would be an offence to employ the individual concerned.

Isn't there a danger of racial discrimination here? Under the Race Relations Act, it is unlawful for any employer to discriminate on grounds of race, colour, ethnic or national origin, or nationality. If you refuse to consider anyone who looks or sounds foreign, this is likely to be unlawful discrimination.
The best way to ensure that you do not discriminate is to treat all applicants in the same way - therefore, carry out identical checks for all applicants.

What records do I have to keep? There are three ways to record the document you have seen:
•Photocopy it
•Scan it onto a database
•Retain it (it is usually only appropriate to retain a document for a day or two, unless the document is a P45).
You should keep the copy document while the employee is working for you, and for at least three years after he has left your employment. If the document goes missing or gets destroyed, you may still be able to prove a defence by showing that it is your normal recruitment procedure that the necessary record be made.

Are there any particular rules or exemptions for the hospitality industry? There are no special rules for the hospitality industry, although the industry may find that the exception for non-EEA students to work without a work permit may be useful for seasonal work, etc.

What sanctions are there if I break the rules? Any prosecutions will be dealt with in the local Magistrates Court. The maximum penalty which will be available to the Court in relation to each charge is a level-5 fine - this is currently up to £5,000. An employer can be charged in respect of each person being employed illegally. The Court will set the fine, taking account of the seriousness of a particular offence and the financial circumstances of the employer. It may take account of previous convictions in deciding the seriousness of the current offence.

Jonathan Exten-Wright is a partner and Sarah Hellewell is a professional support lawyer in the Employment department of DLA Piper.
E-mail: jonathan.exten-wright@dlapiper.com or sarah.hellewell@dlapiper.com


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