Advice on employing and sponsoring specialist foreign workers and immigration compliance.

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In an ever more competitive world, employing the right staff, especially in highly technical or specialised areas, is critical. Such staff may only be available from non-UK or EU countries. The Immigration Rules in the UK enable employers to sponsor and employ staff where necessary but the rules are strict.

Employing staff illegally is very high risk and in many cases, employers still do not realise how they can be liable and that the primary responsibility, at law, is with them.

The following sets out some of the rules, the risks, how to employ specialist staff legally and how we can help.

Employing illegal workers – beware the significant civil financial penalties

The United Kingdom is one of the most attractive countries to live and work, however not everyone who enters the UK does so legally and with permission to work.

Many business in the UK now have non-European workers. Unfortunately, many remain ignorant of the law (which is no defence) or believe, incorrectly, that the rules will not be enforced and/or that the sanctions are not worth worrying about or apply to the illegal worker not the employer.

Legal checks on immigration status of workers

It is very important that employers make it a point to do proper checks when it comes to workers.

There are people that overstay their visa and obtain work, and if you don’t do the proper checks as to whether that person is able to work in the United Kingdom there is risk that you could be found to be employing an illegal worker.

It is also important to understand what it is to employ a worker because you may think that having someone volunteer or possibly cover a shift or something is not considered employing someone illegally just because you haven’t given them an employment contract. Simply having someone you know where you are actually obtaining a service from them can actually fall foul of the illegal working provisions,

The law

The law on preventing illegal working is set out in sections 15 to 25 of the Immigration, Asylum and Nationality Act 2006. Under section 15 of the 2006 Act, an employer may be liable for a civil penalty if they employ someone who does not have the permission to undertake the work in question.

You can get a fine of up to £20,000 per person for employing illegal workers.

The legal definition of an illegal worker

Illegal workers include:

  • people who work on a visitors visa
  • people without UK visas with permission to work
  • casual or non-contracted workers
  • asylum seekers without permission to work
  • students with expired visas, or students working more hours than they’re allowed to.

Home Office Referral Notice

If you are found to be employing an illegal worker you will be given a ‘referral notice’ to let you know that:

  • your case is under consideration by the Home Office
  • you may get a civil penalty of up to £20,000 for each illegal worker
  • you won’t have to pay a civil penalty if you can show you made the correct ‘right to work’ checks and have not been found to employ illegal worker in the last three years
  • You’ll be sent a ‘civil penalty notice’ if you’re found liable and you’ll have 28 days to respond.

As an employer found to be employing an illegal worker you may establish a statutory defence against that you carried out prescribed document checks before the employment started, although this defence is not available if you knew that the employment was not permitted.

The penalty notice will give you your payment options and tell you what do next. It will also tell you how to object to the civil penalty. You can then make an appeal.

Sanctions may also be criminal and reputational

It is incredibly important that you get processes and safeguards against employing illegal workers right.

If you breach the rules your business’s details may be published by Immigration Enforcement as a warning to other businesses not to employ illegal workers. In addition, you can be sentenced to a period of up to 2 years or receive an unlimited fine if you knowingly employ someone who you know does not have the legal right to work in the UK.

Besides having to deal with all other aspects of running a business the responsibility not to employ an illegal worker can be very confusing and stressful. The law is very complicated and failure to fully understand it can result in getting the procedures wrong.

In addition to this, you not only have to consider whether or not you are employing an illegal worker  but also ensure that any workers who have limited rights to work do not work beyond what they are permitted to do. You must have systems in place to ensure an originally legal worker does not become an illegal one.

We can help you not to fall foul of the law on preventing illegal working. We can do this by advising on best practice which includes:

  • Developing systems to address sponsorship requirements such as permitted working hours for Tier 4 employees
  • Developing Systems to address sponsorship requirements such as minimum skill levels, minimum salary levels and advertising a vacancy to settled workers first
  • Developing Systems to address sponsor’s duty to report to the Home Office events relating to the migrant’s employment and circumstances and on certain changes to the business itself
  • Right to Work document checking systems and processes
  • Processes to avoid discrimination whilst complying with Prevention of Illegal Working requirements

Our experience shows that most companies are not getting this right and all of our immigration audit clients have found the service invaluable.

Having the proper procedures in place can protect a business from being held responsible for employing illegal workers.

False right to work documents

There are a number of workers who also obtain false documents to secure employment and there is sometimes no way of knowing. However as long as you can demonstrate that you have undertaken the correct and necessary checks and you reasonably believe your worker had the right to work and you have a proper prescribed records then you will have a statutory defence and you will not be held liable or at least result in a reduced fine.

Immigration law compliance training and seminars

At Darlingtons we understand how difficult and concerning it can be for employers to truly understand the complex issues associated with recruiting non-EU workers. We are able to offer training on all areas of UK immigration law and can offer seminars and training on specific organisational and immigration requirements.

We can offer training on:-

  • Right to Work and Home Office guidance on preventing illegal working and avoiding discrimination
  • Non-Points Based System categories that permit work, such as ancestry, spouse and unmarried partners and EU dependants
  • Maintaining Points based System compliance Human Resources records
  • Monitoring migrants under the Points Based System

How to comply with your non-UK worker sponsor duties

We understand the difficulty of understanding the duties necessary to correctly employ non EU national workers. The intention of our immigration training is to provide everyday practical applications of your requirements, ensuring that your operational practices are current and constantly compliant with Home Office regulations.

We work closely and on an ongoing basis with our clients to provide advice to minimise the risk of employing workers who are either not entitled to work or who are working outside the scope of their UK visa conditions.

Get in touch to find out how we can help with ensuring you comply with the Immigration Rules as a business and avoid the legal pitfalls. We are conveniently located for clients in or around London as we have offices in North London and also Central London.

At Darlingtons Solicitors we provide you with full support to ensure that your pre-employment documents and right to work checking, reporting and other sponsorship duties are fully met and with a peace of mind that you are not at risk of being caught out.