Migrant workers

Disclaimer:  Whilst every effort has been made to ensure the accuracy of the information contained in the Pink Book of Legislation, we regret that we cannot be responsible for any errors. This guide is not intended to be a definitive statement of the law in England. If you require precise or detailed information on the legislation mentioned in this guide, or on the legal implications for you in particular, you should consult a professional legal adviser.

Key facts

  • If you employ, or plan to employ, people from outside the UK, you need to make sure that they have permission to work here before they start working for you.
  • To be entitled to work in the UK, a foreign national must provide you with the necessary documentation.
  • You should check any documentation provided to ensure, to the best of your ability, that those documents are genuine and that the potential employee is entitled to work in the UK.
  • Employees from certain specified countries also need to register with the Home Office’s Worker Registration Scheme.
  • Migrants from outside the European Union need to pass a points-based assessment before they are given permission to enter or remain in the United Kingdom. There are several tiers and, with the exception of highly skilled Tier 1 workers, other non-EU workers and students need a UK sponsor to vouch for them. 

 

Employers' responsibilities

It is important that you are aware of your responsibilities when employing foreign staff. The legislation that applies to migrant workers is the UK Borders Act 2007. The Act covers all aspects of immigration, from asylum seekers through to permanent migration, including the right to work and study in the UK.

On the basis of this legislation the Home Office develops and implements the UK’s immigration rules, which provide the detail as to how the Act is implemented. The Rules are available online at the Gov.uk website. These rules are updated on a regular basis so it is worthwhile checking the site regularly for any changes to the rules relating to employing foreign workers.

If you employ, or plan to employ, people from outside the UK, you need to make sure that they have permission to work here before they start working for you.

 

Proof of entitlement to work in the UK

There are different types of documents that employers should check to ensure that their foreign employees are entitled to work in the UK. Employers who do not undertake these checks are liable to prosecution if they are found to be employing foreign nationals who are not entitled to work in the UK.

To be entitled to work in the UK, a foreign national must provide you with one of the following:

  • A passport showing that the holder, or a person named in the passport as the child of the holder, is a British citizen or a citizen of the United Kingdom and Colonies having the right of abode in the United Kingdom.
  • A passport or national identity card showing that the holder, or a person named in the passport as the child of the holder, is a national of the European Economic Area or Switzerland.
  • A residence permit, registration certificate or document certifying or indicating permanent residence issued by the Home Office or the Border and Immigration Agency to a national of a European Economic Area country or Switzerland.
  • A permanent residence card issued by the Home Office or the Border and Immigration Agency to the family member of a national of a European Economic Area country or Switzerland.
  • A Biometric Immigration Document issued by the Border and Immigration Agency to the holder which indicates that the person named in it is allowed to stay indefinitely in the United Kingdom, or has no time limit on their stay in the United Kingdom.
  • A passport or other travel document endorsed to show that the holder is exempt from immigration control, is allowed to stay indefinitely in the United Kingdom, has the right of abode in the United Kingdom, or has no time limit on their stay in the United Kingdom.
  • An Immigration Status Document, issued by the Home Office or the Border and Immigration Agency, with an endorsement indicating that the person named in it is allowed to stay indefinitely in the United Kingdom or has no time limit on their stay in the United Kingdom, when produced in combination with an official document giving the person’s permanent National Insurance Number and their name issued by a Government agency or a previous employer.
  • A full birth certificate issued in the United Kingdom which includes the name(s) of at least one of the holder’s parents, when produced in combination with an official document giving the person’s permanent National Insurance Number and their name issued by a Government agency or a previous employer.
  • A full adoption certificate issued in the United Kingdom which includes the name(s) of at least one of the holder’s adoptive parents, when produced in combination with an official document giving the person’s permanent National Insurance Number and their name issued by a Government agency or a previous employer.
  • A birth certificate issued in the Channel Islands, the Isle of Man or Ireland, when produced in combination with an official document giving the person’s permanent National Insurance Number and their name issued by a Government agency or a previous employer.
  • An adoption certificate issued in the Channel Islands, the Isle of Man or Ireland, when produced in combination with an official document giving the person’s permanent National Insurance Number and their name issued by a Government agency or a previous employer.
  • A certificate of registration or naturalisation as a British citizen, when produced in combination with an official document giving the person’s permanent National Insurance Number and their name issued by a Government agency or a previous employer.
  • A letter issued by the Home Office or the Border and Immigration Agency to the holder which indicates that the person named in it is allowed to stay indefinitely in the United Kingdom, when produced in combination with an official document giving the person’s permanent National Insurance Number and their name issued by a Government agency or a previous employer.

 

All the documents that potential employees provide must be originals – photocopies, printouts or other copies are not acceptable. The process of checking that a worker is entitled to work in the UK is outlined in more detail in the Home Office publication Prevention of Illegal Working: Comprehensive guidance for employers on illegal working which can be downloaded from the Gov.uk website.

 

Checking employees' documentation

It is your responsibility to look carefully at the documents that candidates provide and to ensure that, to the best of your ability, these documents are genuine and that the potential employee is entitled to work in the UK.

Care should be taken over the following aspects of the documentation provided.

  • Photographs - does the person look like the photographs on their documents?
  • Date of birth - is the date consistent with the appearance of the candidate?
  • Expiry dates - are the documents still valid?
  • Stamps and endorsements - do the passport stamps allow your job applicant to do the type of work you are offering?
  • Name - is the same name used on all the documents?

 

When you have checked the candidate's documents and you are satisfied that they are genuine, you will need to save copies of them for your records either by photocopying or scanning the documents onto your computer.

The Public Register of Authentic Identification and Travel Documents Online (PRADO) can help you ascertain the authenticity of a document. 

 

Penalties for non-compliance

Penalties include:

  • civil penalties for employers who employ illegal migrant workers
  • a criminal offence for knowingly employing illegal migrant workers, which carries a maximum two year prison sentence and/or an unlimited fine
  • employers' continuing responsibility for checking the ongoing entitlement to work in the UK of migrant workers with a time-limited immigration status.

 

To avoid a civil penalty, you should check prospective employees' documents and undertake repeat document checks at least once a year for those employees who have limited leave to enter or remain in the United Kingdom. 

 

Points-based migration system

The Government has introduced a points-based migration system for people from outside the European Union wanting to live and work in the UK. Migrants need to pass a points-based assessment before they are given permission to enter or remain in the United Kingdom. The tiers are:

  • Tier 1 - highly skilled, e.g. scientists or entrepreneurs
  • Tier 2 - skilled workers with a job offer, e.g. nurses, teachers and some chefs
  • Tier 3 - currently suspended (low skilled workers filling specific temporary labour shortages, e.g. low skill hospitality workers)
  • Tier 4 - students
  • Tier 5 - youth mobility and temporary workers, e.g. working holidaymakers.

 

With the exception of Tier 1 workers, all other non-EU workers and students need a UK sponsor to vouch for them.

This points-based system ended previous employment routes to the UK for low-skilled workers from outside the EU, except in cases of short-term shortages. Therefore, unless the newly-formed Migration Advisory Committee identifies specific temporary shortages in the hospitality sector, most employment in the sector will have to be sourced from within the European Union.

 

Sponsoring overseas workers

The Government has recently introduced changes to Tier 2 applicants which include increasing the Tier 2 (General) salary threshold for experienced workers to £25,000 (although there are some exemptions).

Businesses have to pay a one-off licence fee, which lasts for four years, to allow them to sponsor workers to come to the UK. For example, the licence fee for Tier 2 is £536 for businesses with fewer than 50 employees, and £1,476 for businesses with over 50 employees. (The fee is per business rather than per employee.) See the UK Visa Sponsorship for Employers section of the Gov.uk website for more information.

Further guidance