Recruitment and Employment Checks for Foreign Workers

By Andrew Willis
02 Aug 2017

Recruiting the right employee can be expensive in terms of both money and management time, so it must be done right. Managers need to ensure that they recruit the right person for the role.

Ensuring that the right candidate is taken on can also reduce the risk of having to repeat the process frequently and minimises the risk of problems with the individual once they are appointed.

As well as ensuring that the candidate can carry out the role, there are many legal requirements to consider to avoid potential pitfalls.

Legal Checks

One vital factor that must be checked is that the person you are looking to recruit can legally work in the UK.

All offers of employment should therefore be made conditional on eligibility to work in the UK being satisfied. As an employer, you have a responsibility to prevent illegal working in the UK and it is a legal requirement to ensure an individual is eligible to work in the UK.

The majority of foreign workers in the UK come from the EU or EEA. At present, the European Union is an economic and political union which operates an internal (or single) market which allows free movement of goods, capital, services and people between member states.

This means that people from the EU and members of the EEA have a right to be employed in the UK without a work permit, sponsorship or other clearance and can also be joined by dependents. Applicants outside of these areas will normally be required to evidence a certificate of sponsorship issued by an employer which is licenced to sponsor migrant workers.

Following Brexit

Following on from the UK's decision to leave the EU, the Government has announced that eligible EU nationals (those who have lived in the UK for at least 5 years) will likely qualify for permanent residence status.

Strictly speaking, there is no need for anyone affected to act until March 2019, however, any eligible EU citizen may wish to apply for permanent residence and/or British citizenship sooner to avoid delays in applying for the new settled status documentation. The Home Office has announced that it expects the new application system to be up and running in 2018.

The Immigration, Asylum and Nationality Act 2006

For now, we concern ourselves with the impact of The Immigration, Asylum and Nationality Act 2006 which contains a civil offence for negligently recruiting an illegal worker which can incur a fine of up to £20,000 per illegal worker.

The Act also confirms that it is a criminal offence to knowingly employ an illegal employee and this can carry a custodial sentence of up to five years and an unlimited fine.

Employers will be in breach of the legislation if they employ anyone subject to immigration control who has no entitlement to work in the UK.

What is Required for a Recruitment Process

All applicants must produce a document or documents where relevant as detailed in “list A” or “list B” which is a list of acceptable documents or a combination of documents published by the home office. This must be applied to all applicants regardless of their race, nationality or ethnic origin to avoid discrimination claims. List A is for workers who are not subject to immigration control and have no restrictions on their stay or right to work in the UK. 

Where an applicant produces an original document or documents from “list A” eg, Passport for the EU or EEA, this must then be checked and copied by the employer but then no further eligibility checks would be needed in the future for this employee. List B is where the worker has to leave to remain for a limited time and has restrictions on the right to work.

When a worker produces an original document from List B the employer will need to check and copy this, but also note the date that the check was carried out and ensure that follow up checks are done to ensure the person doesn’t continue to work after a document has expired or the company can be liable for employing an illegal worker. While you are not expected to be an expert in uncovering fake documentation, you must take reasonable steps to satisfy yourself that the document you receive is genuine.

If you are given a false document you will only be liable for a penalty if it is reasonably apparent that it's fake.

If you are aware the document is fake or doesn’t belong to the person or the work was not permitted then you will have no defence if the person is then found to be working illegally. As well as the financial and criminal penalties, organisations can also be “named and shamed” if found to be employing illegal workers so checks must be carried out for all workers to avoid these risks.

For further advice on the recruitment process or employing foreign workers, please contact us on 01455 858 132.

About the Author

Andrew Willis

Andrew Willis is the senior manager of the Litigation and Employment Department and assumes additional responsibility for managing Croner’s office based telephone HR advisory teams, who specialise in employment law, HR and commercial legal advice for small & large organisations across the United Kingdom.