According to a survey by the Chartered Institute of Personnel and Development and KPMG, one in five (19%) employers recruited migrant workers in the past three months, to help combat a 'homegrown' skills shortage in the UK. If you're thinking about hiring foreign nationals to bridge your skills gaps, you might find these answers to frequently asked questions from Xpert HR useful:
Is it an offence to employ a foreign national who is subject to immigration control?
Is it an offence to employ a foreign national who is subject to immigration control?
Under the Immigration, Asylum and Nationality Act 2006, it is not an offence to employ someone who is subject to immigration control, provided that he or she has leave to enter or remain in the UK and is not prevented from working. However, it is a criminal offence knowingly to take on a foreign national who has not been granted leave to enter or remain in the UK, or who does not have permission to work in the UK.
Is it lawful to ask a job applicant if he or she requires permission to work in the UK?
Yes, an employer can ask a job applicant if he or she requires permission to work in the UK, as long as all job applicants, regardless of colour, race, nationality, or ethnic or national origins, are asked the same question. Asking the question only to certain applicants based, for example, on their accent or skin colour could amount to unlawful race discrimination.
All employers are subject to a legal requirement under the Immigration, Asylum and Nationality Act 2006 to check that anyone to whom they offer employment has the right to work in the UK. The Government has published guidance to assist employers with how best to do this while avoiding unlawful discrimination (Code of practice: guidance for employers on the avoidance of unlawful discrimination in employment practice while seeking to prevent illegal working (PDF format, 183K) on the UK Border Agency website).
One way for employers to deal with this issue is to state in all letters inviting job applicants to interview that they will require documentary evidence of the applicant’s right to work in the UK. It is advisable for employers to inform all applicants that it is the organisation's policy to require all applicants to comply with this request. At the interview itself, the employer should request sight of, and make copies of, the relevant documents.
What steps must an employer take to ensure that a foreign national has the right to work in the UK?
Prior to allowing a job applicant to start work, the employer should request that the job applicant produce original documentary evidence indicating that he or she has the right to work in the UK, check that the documentation appears to relate to the job applicant and keep a copy of it for the duration of the person's employment and for two years after the termination of employment.
When taking steps to guard against illegal working does an employer risk being accused of race discrimination?
Yes, great care needs to be taken not to treat candidates of foreign nationality unfavourably in the recruitment process. In February 2008, a "Code of practice on the avoidance of unlawful discrimination in employment practice while seeking to prevent illegal working" was introduced. Although the code is not legally binding, a failure to observe it may be taken into account by an employment tribunal in its assessment of a complaint of race discrimination.
How can employers reconcile the requirements of the Immigration, Asylum and Nationality Act 2006 with the provisions on race in the Equality Act 2010?
It is important to ensure that no job applicant is rejected because of his or her appearance, colour, accent or foreign-sounding name. Employers may wish to include a statement with all letters sent out inviting job applicants to interview that they will require documentary evidence of their right to work in the UK. In this way they can ensure that no job applicant is singled out for different treatment on the grounds of race.
Can an employer refuse to employ a foreign national because of the effort involved in ensuring that he or she has a right to work in the UK?
It is unlawful to refuse employment to a job applicant on the grounds of his or her nationality. Even if an employer is concerned about the time and effort required in processing a foreign national, under the Equality Act 2010, rejection for employment on racial grounds will be unlawful at any stage of the recruitment process.
Where an employer is recruiting a foreign national under tier 2 of the points-based system, must it also require the recruit to produce documentary evidence of the right to work?
Under tier 2 of the points-based system, which was implemented on 27 November 2008, a foreign national can make an application at the British Embassy in his or her home country for permission to come to the UK and take up sponsored employment. The employer must already have provided the individual with a sponsorship certificate. The individual’s passport will be endorsed to show that the holder is allowed to stay in the UK (for a limited period) and is allowed to do the type of work in question. The employer must carry out the necessary document checks, on recruitment, to ensure that the passport is endorsed as necessary.
Is a lapsed UK passport acceptable as proof of an individual's right to work in the UK?
The legislation is not entirely clear on this point but it would appear that the answer is no. The Immigration (Restrictions on Employment) Order 2007 sets out two lists of documents that are acceptable as proof of entitlement to work in the UK for the purposes s.15(3) of the Immigration, Asylum and Nationality Act 2006. Under s.15(1) it is unlawful to employ in the UK a person aged 16 or over who is not entitled to work in the UK. However, s.15(3) of the Act provides a defence where the employer can show that, before the employment began, it carried out various documentary checks in order to verify the prospective employee's status.
Documents are in one of two lists. List A includes documents that show that the holder has the indefinite right to work in the UK. List B includes documents that show that the holder has a limited right to work in the UK. Employers must check one original document, or two original documents in defined combinations, from either list. A UK passport describing the holder as a British citizen is the first document on list A. Although the words "current" or "valid" are not used to describe the UK passport, the legislation requires the employer to copy the page of the passport that contains the date of expiry.
