From time to time, most employers will come across immigration issues. It
can sometimes be difficult to know where to start.
The best place to start is the duty under the Immigration and Asylum Act
1996 on employers not to employ anyone who does not have the right to work in
the UK. A breach of this obligation is a criminal offence subject to a fine up
to a maximum of £5,000 per offence.
But the obligation does not force employers to look carefully through the
passports of potential recruits. A statutory defence exists where an employer
has checked one of several routine documents, and kept a copy of it on its
files. The main document would be any official record of the employee’s
National Insurance number.
Employers should also beware of making too much of this issue as a way of
screening potential recruits, because of the potential liabilities which exist
for race discrimination. Very often, individuals from ethnic minorities have
every right to live and work in the UK, so assumptions should be avoided.
Obtaining work permits
There are some steps to go through before the issue of work permits come on
to the agenda. The first is that all individuals who are nationals of any EU or
EEA country have the right to live and work in the UK without obtaining any
further entry clearance. Similarly, individuals who are married to such a
national also have that right, provided they are coming to the UK with their
spouse.
Secondly, a Commonwealth citizen with a grandparent born in the UK should
have the right to live and work in the UK under the "UK Ancestry"
rules. In this case, prior entry clearance from a British embassy or consulate
overseas is needed but is usually a formality.
Only when these avenues are exhausted should the employer then think about
obtaining a work permit. Applications for work permits are dealt with by the
Overseas Labour Service, a part of the Department of Education and Employment,
based in Sheffield.
Applications for work permits must be made by the employer while the
relevant individual is outside the country, and can be granted on a number of
different bases. Full work permits are usually only granted to individuals with
high-level skills, qualifications and experience, where there is a genuine
vacancy and there are no "resident workers" available to take up the
job.
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This means that, unless the application falls within one of the "Tier
One" categories below, evidence of the unavailability of resident workers,
usually produced by unsuccessful advertising in the national media, will be
necessary. The advertisement should be published at least four weeks before the
application is made, to give time for suitable candidates to come forward. Once
they have identified themselves, the employer will need to give cogent evidence
as to why they are not suitably qualified or experienced.
The Tier One categories are: Intra Company Transfers, where an employee is
moving within a group of companies and has been working for at least six months
overseas before the application; a Career Development Permit, for up to 36
months; Board Level posts; and posts that are necessary to secure substantial
inward investment – usually at least £250,000 – which would not otherwise be
brought into the UK. There are other occupations where there are recognised
shortages for suitably qualified people, who therefore also do not need to
fulfil the advertising requirements.
