With the Home Office planning to hike fines for breaches of immigration rules, it’s crucial that employers know their way around the visa system and challenge their assumptions, says Ross Kennedy. Here are eight of the common myths that exist around immigration rules.
Fines are set to more than triple for employers who hire those without permission to work in the biggest hike in civil penalties since 2014.
From early next year, civil penalties will be raised from up to £15,000 to up to £45,000 per illegal worker for a first breach. The fine for repeated breaches will be increased from £20,000 to up to £60,000.
Many instances of non-compliance are accidental. It’s all too easy to make simple errors that can land your business in hot water.
Nevertheless, it is an area employers deal with on a frequent, even daily, basis. With the prime minister pledging more immigration enforcement staff and a 50% increase in raids on illegal working, it’s more important than ever to get things right.
We look at some of the most common immigration myths we find in the workplace.
1. What’s the worst that could happen?
If a person is deemed to be working in the UK without having the appropriate immigration status or work permission there are serious potential consequences for both the employer and the individual. An employer could be liable for a civil penalty of up to £60,000 per illegal worker from next year.
It is also a criminal offence to employ someone if you know (or have reasonable cause to believe) that they don’t have the right to work in the UK, with a hefty potential fine and/or imprisonment.
Immigration system
If the employer has a licence to sponsor workers in the UK, there could also be an impact on their ability to retain/sponsor other workers.
For the individual, working if they do not have the required permission could result in them facing a bar from returning to the UK – this could be for up to a year or, if UK Visas & Immigration (UKVI) believe deception was used, up to 10 years.
It is also a criminal offence for an individual to work in the UK if they know (or have reasonable cause to believe) they don’t have the required work permission and they may be liable to imprisonment and the government could seize their illegal earnings.
2. I don’t need a visa – I’m from…
Citizens of some countries can travel to the UK as a “visitor” without a visa, while other citizens of certain other countries (known as visa nationals) will always need a visa to travel to the UK. A lot of people assume that if they don’t need a visa to travel to the UK as a visitor, this means they never need a visa at all.
Visitors can come to the UK for tourism or certain business activities, which include negotiating and signing deals and contracts; carrying out site visits or inspections; promoting your business at trade fairs (though you cannot sell things).
They are not allowed to take employment in the UK or carry out any activities that UKVI consider to be “work”, unless that specific type of activity is expressly permitted in the rules for visitors.
It is also important to note that over the course of the next year or so, even citizens of countries that don’t currently need a visa to come to the UK as a visitor will soon need to apply for an Electronic Travel Authorisation (ETA) before coming to the UK.
3. I’m a digital nomad – I can work from anywhere
Although the world seems to be generally moving in the direction of increased connectivity and being more permissive of remote/digital working (especially since the pandemic), with some businesses operating entirely as virtual offices, the UK does not yet recognise the immigration status of a digital nomad.
We may have seen them showing off their laptops in various glamorous locations around the world on social media, but there is no specific visa category for this in Britain. In most cases, if a person wants to work remotely in the UK, they will need an appropriate visa with work authorisation, such as a Skilled Worker visa.
4. I can work for my overseas employer
Although visitors can come to the UK for tourism or certain business activities, they are not allowed to take employment in the UK or carry out any activities that UKVI consider to be “work”, unless that specific type of activity is expressly permitted for visitors.
For example, a visitor can negotiate and sign contracts with UK-based clients, but is not permitted to provide consulting services or begin working on such a contract while still in the UK.
Some specific types of work are permitted (such as translators, entertainers and sportspersons, journalists, international drivers and employees of overseas manufacturers) but certain requirements need to be met.
When a person is employed by an international company and is visiting the UK as part of the same corporate group, if they will be working on a project or conducting an audit with other employees of the group and will not be dealing with clients or third parties, this may be permitted but UKVI would normally expect this to be on a short-term basis.
If a person’s proposed activities in the UK exceed this, they would normally need an appropriate visa, such as a Skilled Worker visa.
5. Sponsoring employees is too complicated
One of the main things that puts employers off sponsoring potential employees for work visas is the perception that the whole process is too complicated. Another is that it is too expensive.
While there are a number of different government fees and charges involved in sponsoring a hire on a work visa and employers do take on a number of compliance responsibilities, it is also true that the requirements are actually relatively straightforward and easy to understand once you get to grips with them.
In order to become a sponsor, an organisation must be able to meet certain responsibilities for record keeping, monitoring and reporting. While these may require some changes to how you manage your HR systems and processes, in many cases they are also common sense and you are likely to be doing many of them anyway as a matter of good HR practice.
Requirements for individual sponsored visas will depend on the specific type of work visa but what most have in common is that roles need to meet a minimum skill level and a minimum rate of pay. Both of these are easy to look up on the government’s online list of standard occupational codes.
In most cases, becoming a sponsor, sponsoring a visa and managing the sponsor licence involves simply understanding what UKVI expects of you and being organised. If we ever spot mistakes these can usually be noted and cleared up easily.
6. Don’t I have to hire a local worker?
Times have changed and following the UK’s departure from the EU, the government made several changes aimed at making sponsoring employees easier. This was intended to make up for the loss of access to the European labour market following the end of free movement.
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The two biggest changes affect the Skilled Worker visa, which was previously known as Tier 2 (General). One change was to scrap the annual quota which capped the number of visas that could be issued in this category each year. Another was to remove the Resident Labour Market Test requirement.
Employers had to advertise vacancies in specific ways and for specific periods, and then they were only allowed to sponsor a migrant worker if they could show that no applications were received by people in the UK who met the minimum requirements stated.
Now you just need to be able to show that there is a genuine role that meets the required pay and skill level, that the individual in question is suitably qualified and how you identified them and confirmed their suitability.
7. I can use an ‘employer of record’
In order to apply for a sponsored work visa, such as the Skilled Worker visa, prospective employees must be sponsored by an organisation with a sponsor licence.
With the exception of the UK Expansion Worker visa (where an overseas company is expanding to the UK but has not started trading here yet), the sponsoring organisation must be based and trading in the UK.
This is often the biggest obstacle to getting an employee an appropriate work visa and something we see often where an overseas company has entered into a contract with a UK-based client but then has no way to send workers to the UK to deliver on that contract.
We are often asked if it is possible for an overseas employer to use a professional employer organisation (PEO) or employer of record (EOR) to act as the local employer in the UK.
Unfortunately, UKVI is quite clear that companies are only able to sponsor workers in their own organisation, or where they are working on behalf of the sponsoring organisation to provide a specific, time-bound service/project for a contracting third-party.
It is not permitted to sponsor employees where they will effectively be working on behalf of third parties in an ongoing (or “routine”) role, which is typically what would happen with an EOR or an employment agency – the individual would be “employed” by the EOR but would actually be under the control and direction of the contracting company.
If a person has another type of right to work in the UK other than as a sponsored worker (e.g. they have status under the EU Settlement Scheme or a visa as the partner of a British citizen), it would be fine to use an EOR. The above restriction only applies to workers who need to be sponsored.
8. Employees can use the ePassport Gates
As part of the ever-increasing digitisation of the world, the UK border now has ePassport Gates and citizens of certain countries (EU member states, Australia, Canada, Iceland, Japan, Liechtenstein, New Zealand, Norway, Singapore, South Korea, Switzerland or the USA) may be able to use these eGates to enter the UK without seeing or being interviewed by UK Border Force.
In practice this is a simple and quick way to navigate UK immigration. However, it is all too easy to come a cropper if someone uses these gates to come to the UK to perform, work on a creative project or any permitted paid engagements.
They won’t get a chance to explain their intentions and planned activities when seeking entry, and the eGate computer will normally only grant entry as a visitor by default (unless they already hold a visa in another immigration category).
For most travellers coming to the UK for tourism this is fine. However, if someone is a non-visa national (from a country which doesn’t require a visa to travel to the UK as a visitor) and is coming to the UK to work under the creative worker visa-free concession or the permitted paid engagements category, the computer has no way of knowing that. Instead, they must see an Immigration Officer to stamp their passport with the appropriate immigration status. Otherwise they will not be permitted to work in the UK.
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