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«FURTHER INFORMATION House of Commons The following EMPLOYING FOREIGN NATIONALS – government guidance addresses checking an employee’s work ...»

-- [ Page 1 ] --

FURTHER

INFORMATION

House of Commons

The following

EMPLOYING FOREIGN NATIONALS – government guidance

addresses checking an

employee’s work

GUIDANCE NOTE status:

https://www.gov.uk/g Introduction overnment/publicatio ns/right-to-workFor staff members who hold a pass for the Parliamentary Estate, the checks-employersPass Access Unit will carry out checks to verify an individual’s right to guide work in the UK.

There is also a Code of Those individuals who may take up employment in the UK without Practice on avoiding

special permission are:

race discrimination whilst preventing  UK citizens or Commonwealth citizens with the right of abode in

illegal working:

the UK;

 spouses, civil partners and long-term unmarried partners of UK https://www.gov.uk/g overnment/publicatio nationals, whatever their nationality, who have been granted visas confirming their status or who are granted indefinite leave to ns/right-to-workremain in the UK; checks-code-ofpractice-on-avoiding Swiss or European Economic Area (EEA) nationals (except citizens discrimination of Croatia) and their EEA family members, or non-EEA family members (of Swiss or EEA nationals) who have obtained an EEA family permit before coming to the UK or a residence card from within the UK ("family members" includes spouses or civil partners, dependent children or grandchildren under the age of 21 and parents or grandparents);

 spouses, civil partners, unmarried partners and dependants (ie dependent children under the age of 18) of people who have permission to work in the UK under tier 2 of the points-based system, or who hold a UK work permit that is still valid, provided that such dependants have been granted a visa confirming their status before coming to the UK;

 people born in a Commonwealth country who have a grandparent born in the UK and who have been granted an ancestry visa before coming to the UK;

Employing Foreign Nationals. May 2015 Members’ HR Advice Service  people who have obtained visas under tier 1 of the points-based system and their dependants who have been granted a visa confirming their status before coming to the UK;

 overseas students (other than student visitors) granted visas permitting them to undertake a course of study at a UK institute of further education (with restrictions) and, where eligible, their dependants who have been granted a visa confirming their status before coming to the UK; and  anyone with indefinite leave to remain in the UK.

Prior to 1 January 2014, Bulgarian and Romanian nationals who wanted to work in the UK had to obtain prior permission.

The provisions of the Immigration, Asylum and Nationality Act 2006 Provisions in the Immigration, Asylum and Nationality Act 2006, which came into force on 29 February 2008, make it a criminal offence to take on an employee knowing that he or she is an adult (ie aged 16 or over) who is subject to immigration control and:

 who has not been granted leave to enter or remain in the UK; or  whose leave is invalid, has ceased to have effect or is subject to a condition preventing the individual from accepting the employment.

The responsibility lies with the employer to make sure, before it employs an individual, that the person has the right to work in the UK.

Under the Immigration, Asylum and Nationality Act 2006, employers should, prior to allowing a job applicant to start work, take the following steps to check whether he or she has the right to work in

the UK:

 Require the job applicant to produce one or two original documents in defined combinations, indicating that he or she has the right to work in the UK.

 Check that the documents appear to relate to the job applicant.

 Keep a copy of the documents.

Although it is not a legal requirement to check and retain copies of such documents, by doing so employers are provided with a defence, or statutory excuse, against liability for payment of a civil penalty for employing a migrant worker illegally. Copies of such documents should be kept for the duration of the person's employment and for two years after termination of employment. However, an employer that checks and retains copies of documents confirming a worker's right to work will not have a statutory excuse if they knowingly employ an illegal migrant worker.

The employer must check and copy either one or two of a specified combination of original documents from approved lists A or B (see List of specified documents).

Employers are expected to take reasonable steps to verify the authenticity of the documents produced for this purpose, although they are not required to be experts on detecting forgeries.

When checking documents, employers should therefore:

Employing Foreign Nationals. May 2015 Members’ HR Advice Service  check photographs to make sure that they are consistent with the job applicant's appearance;

 check the date of birth to ensure consistency with the job applicant's appearance;

 where any document provided contains a different name for the applicant, request further documentation to explain the reason for the discrepancy (eg a marriage certificate);





 check the expiry dates of any leave for the individual to enter or remain in the UK and any government endorsements in the passport, such as visas; and  take any further steps that it would be reasonable to take to verify that the job applicant is the rightful owner of the documents that he or she has produced.

There is an additional duty to conduct follow-up checks in cases where an individual whose employment began on or after 29 February 2008 has been granted only limited leave to remain and work in the UK (ie where the individual has produced documents from List B). Employers should, therefore, set in place a system whereby the expiry date of the individual's leave to remain is tracked and repeat follow-up checks are conducted prior to the relevant expiry date. The follow-up checks should take the same form as the original document check. In this way, employers can ensure that the continued employment of the individual is legal. From 16 May 2014, in limited circumstances, a follow-up check may be required earlier than at the point of expiry of an individual's permission (for List B, group 2 documents (see List of specified documents)).

If, during the recruitment process, it is evident from an individual's documentation that his or her permission to work in the UK will expire in a few months, the employer should either ensure that it takes the necessary steps in good time to extend or renew the permission, or that it ceases to employ the individual. Continued employment in these circumstances could be viewed as "knowing" employment of an illegal worker, for which there are criminal, as well as civil, penalties (see below).

If a potential new recruit fails to provide the necessary documentation to demonstrate that he or she has the right to work in the UK, the employer should not allow him or her to commence employment. Further, employers that have grounds to believe that a person who is seeking to work in the UK does not have the right to do so may, at their discretion, report that person to the Home Office.

Penalties Failure to comply with the provisions of the Immigration, Asylum and Nationality Act 2006 will render an employer liable to both civil and criminal penalties.

There are civil penalties for employers that employ illegal workers as a result of negligent recruitment and employment practices. Employers are liable to be fined up to £20,000 per illegal worker (increased from £10,000, with effect from 16 May 2014).

It is a criminal offence for employers knowingly to employ illegal migrant workers. Employers could incur unlimited fines. Further, individual directors and/or senior managers who know or consent to the illegal employment of the workers concerned may also be convicted and face up to two years' imprisonment.

EEA nationals Employing Foreign Nationals. May 2015 Members’ HR Advice Service With the exception of Croatian citizens, citizens of any country in the European Economic Area (EEA) are entitled to work in the UK without special permission. The EEA consists of the following

countries:

–  –  –

Prior to 1 May 2011, migrants from eight of the 10 countries that joined the EU on 1 May 2004 - the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Slovakia and Slovenia - were required to register with the Home Office under the Accession State Worker Registration Scheme if they planned to work for a UK employer for more than one month.

Prior to 1 January 2014, there were restrictions on employed work for Romanian and Bulgarian nationals (although they have had the right to travel throughout the EU since 1 January 2007). These restrictions were lifted with effect from 1 January 2014. Prior to that date, Bulgarian and Romanian nationals who wanted to work in the UK had to obtain authorisation before commencing employment, unless the employment fell into one of the exempted categories. There was a twostage process for obtaining the necessary authorisation. First, the employer had to apply for a work permit for the individual. (The work permit arrangements were retained for employers wishing to employ Bulgarian or Romanian nationals in skilled jobs.) Second, the Bulgarian or Romanian national had to apply to the Home Office for an accession worker card in respect of the particular employment. Bulgarian and Romanian nationals could also obtain an accession worker card to authorise them to work in certain low-skilled jobs in the food manufacturing sector, subject to an annual quota (see Sectors-based scheme (closed)). A2 workers on these schemes had their right to work limited to 12 months and did not have access to benefits or public housing.

Croatia joined the EU on 1 July 2013. From that date, citizens of Croatia have the right to travel throughout the EU but restrictions are in place on employed work for Croatian workers. EU member states may regulate Croatian's access to their labour markets for up to five years from the date of Croatia's accession to the EU (ie to 30 June 2018). This restriction may be extended for a further two years (ie to 30 June 2020) if the labour market would otherwise be adversely affected.

Croatian nationals who want to work in the UK must obtain authorisation prior to commencing employment. They require a certificate of sponsorship under tier 2 of the points-based system (rather than the old-style work permit system that applied for Bulgarian and Romanian nationals prior to 1 January 2014). Croatian nationals must also apply for an accession worker card before they can commence employment.

Citizens of Croatia do not need to obtain prior authorisation to work in a self-employed capacity.

Employing Foreign Nationals. May 2015 Members’ HR Advice Service When a Croatian national has worked lawfully in the UK for 12 months, he or she is free to continue to work without restrictions.

Citizens of Switzerland also have the right to work in the UK without special permission.

Regardless of their nationality, family members of Swiss or EEA nationals living in the UK also have an automatic right to reside and work in the UK. They can first obtain an EEA family permit from their nearest diplomatic post abroad before coming to the UK, to evidence their right of residence and right to work. Applicants from within the UK are issued with a residence card, on application to the Home Office. "Family members" includes spouses or civil partners, dependent children or grandchildren under the age of 21 and parents or grandparents. Partners who are not married or in a civil partnership and other relatives who are not EEA nationals (including extended family such as brothers, sisters and cousins) do not have an automatic right to live or work in the UK although they may apply for permission to do so if they are dependent on the EEA or Swiss national, or in the case of partners who are not married or in a civil partnership, if they are in a durable relationship with the EEA national.

List of specified documents To verify a job applicant's right to work in the UK, the employer is required to see, and keep a copy of either one document, or two documents in defined combinations, from either List A or List B.



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