An Entrepreneurs guide to employing people from abroad
If you are employing staff then you are hard working entrepreneurs, probably running small business and trying hard to keep your head above a tidal wave of red tape and taxation. Recent reports from Reuters and Essex University revealed that corporation tax payments by the UK’s largest companies have fallen by more than 20% since 2000, despite increased profits. In the same period the amount of tax contributed by small business like yours has trebled.
So here is my guide to avoiding falling foul of UKBA guidelines. It may not stop you being resentful when you buy your next latte in Starbucks, but it may help you avoid a fine or wasting time on training staff that you cannot keep.
The basic rule is that it is illegal to employ someone who has no right to work in the uk. If you do so, you will be liable to a fine of up to £20,000 PER EMPLOYEE and/or up to two years in prison. Now you know the consequences of getting it wrong, here is how you can get it right.
I said it wasn’t an idiots guide but the process is quite simple. There are certain documents you should ask ALL employee to produce at the outset of their employment. If you check those documents against my guide below (and remember to keep copies) if it later turns out that the employee didn’t have the right to work in the uk (because, for example, the passport was a forgery) you will not be fined by the UKBA though you will lose the employee. This may sound obvious but just to be clear, if the documents the employee gives you does not give them the right to work in the uk DON’T EMPLOY THEM!
When ANY new person joins you, ask for and take copies of ORIGINAL unexpired acceptable documents showing that the person is allowed to work before they start working for you. I said above that if the documents are forgeries you won’t be in trouble, but you still need to carry out basic checks. Are they in date (this doesn’t apply to UK passports) does it look genuine, does the name on the passport match the name of the candidate. Does the picture look like a reasonable likeness.
If you already employ staff, it’s not too late to do the checks. If you find out that you are employing someone who doesn’t have the right to work here, get advice quick on what to do. Better late than never.
If when you check someones documents you find that they have a restriction on the type of work they can do and/or the hours they can work, make sure the job you give them does not break those conditions.
If a person has a time limit on their right to work, you will only keep your excuse if you repeat the document checks at least once every 12 months or when you know the limit ends, whichever is the shorter time period.
The checks you should make (or have made) to ensure your employees are entitled to work in the UK depend on when each person started working for you. I’m only dealing with staff taken on from 29 February 2008 but if you are concerned about people who joined you before then, you need to make further enquiries*.
If you are employing a national of the European Economic Area (EEA) or
Switzerland, ask them to confirm their nationality by producing a valid passport or ID card. If your geography is as bad as mine, you might be uncertain as to what countries are covered. You can check the list here.
If they say they are from an eligible country but don’t have a passport or ID card, there are other checks that can be done. As this is rare I’m not going to take up space here so see below *
Bulgarian and Romanian nationals cannot start working in the UK without the UKBAs permission. If they cannot produce evidence of permission having been granted, don’t employ them unless and until permission has been given.
If your worker does not fall within any of these geographical categories, you need to see an ORIGINAL in date permit or visa showing one of the following:
They’re exempt from immigration control they have indefinite leave to remain they have no time limit to their stay in the UK they have a Certificate of Entitlement to Right of Abode (in a current, valid passport)
If they cannot do any of these, ask for an official document from a UK government agency (eg HM Revenue & Customs, Department for Work and Pensions, or the Social Security Agency in Northern Ireland) showing their National Insurance number AND either an ‘immigration status document’ or a letter from the Home Office saying that they have a right to permanent residence.
Alternatively the worker needs one of these: 1. visa for the relevant type of work 2. biometric residence card for the right type of work (or a ‘Certificate of Application’ for a ard less than 6 months old) 3. document issued by the Home Office to a family member of an EU/EEA/Swiss national showing that they can work in the UK.
If your worker cannot satisfy any of these criteria then they do not have an automatic right to work in the uk although they can apply for a work visa.
If in doubt, check with an expert or the UKBA. Better to be safe than sorry!
All good advice should come with a caveat. This is a very general article and should never be taken as a substitute for taking legal advice. If in doubt, speak to your solicitor, the CAB or the UKBA.
Stephanie Kleyman is a commercial solicitor with over 24 years experience in providing help and advice to businesses. She and her team can be reached on 0208 369 5115 or at kleymansolicitors.com.