Business Immigration: Getting your house in order

Key considerations

If you employ workers from overseas it is essential that you have checked they have the right to work in the UK, or obtained the necessary visa or sponsor licence.

Failure to do so could lead to fines of £20,000 PER WORKER. Illegal working is now a criminal offence and can lead to loss of your sponsorship licence as well as reputational damage.

Right to work without a visa

• British Citizens
• EU/EEA Nationals
• Holders of Indefinite Leave to Remain (ILR)
• Holders of Right of Abode (RoA)

Important Note: ILR & RoA Visa Holders must present a valid BRP or a visa endorsed in a valid passport. You may no longer accept visas in an expired passport when making a new hire.

Key Risks

• Illegal working has become a criminal offence since 2016
• Civil Penalties are £20,000 per illegal worker
• In addition to a fine, employing illegal workers can result in loss of sponsor licence
• Earnings paid to illegal works can be seized as Proceeds of Crime
• Risk of reputational damage – with breaches published quarterly.

Carrying out checks

Robust processes are essential to defend against these risks.

• Recruitment process is key and is underpinned by effective process which should be factored into recruitment.
• Checks before employment – effective checks during the interview phase should ensure that candidates offered employment have already been checked for eligibility to work in the UK; if this is not possible, it is essential to carry out checks prior to first day of employment. Checks on day one will NOT provide a statutory excuse if there is a problem later on.
• Tracking of visas – any employee with a time limited visa will need to be tracked and follow up checks completed.

• Standardise your process – this ensures that potential claims for discrimination due to right to work checking are defensible. Check all applicants so that policy is based on equal and consistent application of a defined criterion with a legitimate aim.
• Train your hiring managers – Do they know what documents to take and check. Can you provide tools to capture the right information.

Checks prior to employment

• Candidate looks like their ID; identity fraud means illegal workers may obtain documents with lookalike photos.
• ID permits employment – check whether any restrictions conflict with the contract offered.
• Original ID is seen, verified, copied & certified – verifications carried out by Skype are only permissible if the original ID is in the hands of the employer.
• The original ID and all associated stamps and permits must be copied certified and stored (use the UK VI checklist or a dedicated software solution).
• Copy visas, BRPs and stamps.
• Check validity of visa/BRP and any restrictions, particularly validity dates.
• HR file has physical or electronic copies stored – either in hard copy or electronically if in a read only format.

Use your data to stay compliant

• Log key dates; HR systems can allow reports to extract data showing when visas are expiring.
• Repeat checks 3 months in advance of expiry – engage with migrant workers before visa expiry.
• Educate your managers on the process.
• Work with UKVI – access the employers and sponsors’ helpline to obtain advice on right to work checks and illegal working.

Sponsor compliance – audits

If you hold a sponsor licence you may be aware that UKVI can and will audit your licence for compliance – the aim is to do so once in its 4 year life span – in reality audits will be prioritised on sponsors who have never been audited or those who demonstrate a greater risk profile.

• Typically audited once every four years.
• UKVI often attend without warning – so don’t be complacent about compliance.
• One negative audit is enough to lose licence
• Audit will look at HR process as well as worker files.
• Do you know who looks after your licence?
• When was the last time you looked at your processes?

Sponsor licence – areas of focus

A compliance audit has quite a wide scope and will look at the following areas:

• Recruitment process.
• Right to work.
• Absence monitoring / contact management / contractual changes.
• HR data, information security and migrant tracking.
• Compliance officers regularly interview sponsored workers on site during the visit.

Licence audits – be ready

Getting ahead and staying ahead is the best way to manage your licence compliance. Self audits are a great way to do this – BUT remember you do not know what you do not know. A third party may spot things or be able to suggest improvements to process based on experience of other audits with UKVI or clients. So;

• Carry out a self audit.
• Engage a third party to audit you.
• Review your processes.
• Check your right to work data.
• Ensure managers are refreshed on obligations, such as the need to update sponsorships with salary increase or promotions.
• Consider regular migrant communications – i.e. policy.

A cautionary tale

Non sponsors can be visited too – UKVI now have access to all NI and PAYE data which can be crossed checked against visa records.

• Such visits will be enforcement led.
• UKVI can take illegal workers away.
• Fines are a certainty if this happens and there is a real risk of prosecution.
• Sponsor or not, take an inward look at how compliant you are.

Brexit

Brexit provides an new era of continued uncertainty for European nationals; it would be wise for European nationals to register their rights through either a Qualified Person or Permanent Residence application sooner rather than later for the best possible protection, whilst the outcome of the Article 50 negotiations remain uncertain. Applications cost £65 per person and the online forms aren’t as intimidating as people may think.

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The content of this page is a summary of the law in force at the date of publication and is not exhaustive, nor does it contain definitive advice. Specialist legal advice should be sought in relation to any queries that may arise.