Top tips to avoid legal pitfalls of employing non-UK nationals

HR have had to grapple with a huge number of legislation changes over the last 12 months, so we asked Rebecca Bridges, Senior Associate of Squire Patton Boggs, to make life a little easier for employers of non-UK nationals. Here are the essential take-aways from Rebecca’s presentation and discussion at BFI’s 23rd Annual Vetting & Screening Conference.

Delegates’ main concerns addressed by Rebecca included:

• Who, when and how do we complete a right to check?
• What’s a statutory excuse?
• What are the different immigration categories?
• What happens if we get a right to work check wrong?
• What impact will Brexit have?

So what do you need to know?

1. The Home Office issued just over £7.5 million in illegal working penalties for the period 1 January to 31 March 2018 – failing to carry out right to work checks properly or at all carries the following risks:

• A civil penalty fine for the business of up to £20,000;
• Naming and shaming by the Home Office and the media;
• Personal criminal liability – for those who either know or have reasonable cause to believe that an employee does not have the right to work – resulting in an unlimited fine and potential imprisonment for up to five years;
• If your business is a licensed sponsor, that licence could be revoked; and
• Employment Tribunal claim(s) for unfair dismissal and/or race discrimination.

2. Employers can establish a ‘statutory excuse’ against illegal employment by checking specified documentation which shows that the employee is allowed to work in the UK in the role in which they are employed. This documentation is referred to by the Home Office as List A and List B and is accessible here.

3. A statutory excuse must be ‘maintained’ by carrying out follow-up checks when required to do so – i.e. when an employee has a time-limited right to work in the UK.

4. Checks must be carried out on all prospective employees before they start work regardless of perceived nationality or right to work.

5. Employers should regularly audit their employee files and if right to work documentation is missing, carry out a new check as soon as possible.

6. A basic right to work check involves five key steps:

• Step 1 – Obtain relevant original documents (List A or List B)
• Step 2 – Check the documents
• Step 3 – Copy the documents
• Step 4 – Endorse the copy to confirm when the check took place
• Step 5 – Carry out a repeat check where relevant

7. UK Right to Work immigration policy is complex – never be afraid to ask for help.

8. Really scrutinize and understand the documents presented.

9. Right to work checks following Brexit - no changes for now with regard to the automatic right to work in the UK for EEA nationals.

• If we leave the EU ‘with a deal’ on 29 March 2019:
  • EU freedom of movement will effectively continue until 31 December 2020.
  • Under current plans, EU citizens in the UK by 31 December 2020 will be required to apply for pre-settled or settled status, on or before 30 June 2021.
• If we leave the EU ‘without a deal’ on 29 March 2019:
  • EU citizens and their family members already in the UK at that point will still be able to stay by applying under the Settlement Scheme.
  • The position is less clear for EU citizens whose residence in the UK begins after 29 March 2019. However, in the event of a no-deal scenario, the current provisions of EU law on freedom of movement will remain in force at least for the short term, as these have been incorporated into UK law by the European Union (Withdrawal) Act 2018. In practice, this means that the current rights of EEA nationals to enter, live and work in the UK would broadly continue until the UK government or the UK parliament introduces new law to change those rights.

If you are interested in finding out more or you have other UK immigration related queries, please contact Squire Patton Boggs and/or Rebecca Bridges.