Employing Foreign Nationals – How to Stay Legal

employing foreigners, employing foreign nationals, migrant workers, foreign workers

Later this year the UK will accept Bulgarian and Rumanian immigrants to live and work here.  This follows a two year restriction on doing so that was implemented in November 2011 in order to protect the UK economy and all time jobs low but follows various EU treaties that allow the unrestricted movement of people within the EU states.

With this latest possible influx of EU migrants it is important that employers check the status of their employees to ensure that they have the right to work in the UK. Its difficult to know without checking given that there are many nationalities who have come to the UK to find work. A recent Panorama programme showed the UK Border Agency raiding a South London company who were illegally employing foreign nationals.  It’s not just the migrants who were in trouble, employers who fail to make robust checks on their employees can face huge fines with civil and criminal penalties.

There are key documents that employees need to provide to their employer that show their immigration status eg passport, visa.  An employer should ask for these documents as part of the recruitment process before taking on the employee and keep a photocopy on file which will help them if they are audited; details of the documents that can provide proof of immigration status can be found on the UK Border Agency website.  Provided you can show you have correctly checked the documentation it provides a statutory defence against a penalty.  It’s not just about checking whether the workers have the right to work in the UK, it’s about ensuring that they are not working too many hours or undertaking a type of work that they should not be doing; students for example can only work a certain number of hours per week.  Also some migrants may have time limits on their right to stay in the UK, that is why it is important to undertake regular checks at least once every 12 months. 

The legislation that governs the employment of foreign nationals is the Immigration Asylum & Nationality Act 2006 that came into force on 29 February 2008 and applies to staff who are employed from that date.  Guidance on managing migrants employed 27 January 1997 to 28 February 2008 is governed by the Asylum & Immigration Act 1996.

The UK Border Agency provides lots of useful guidance here:  http://www.ukba.homeoffice.gov.uk/sitecontent/documents/employersandsponsors/preventingillegalworking/currentguidanceandcodes/comprehensiveguidancefeb08.pdf?view=Binary