Topic of the week: Employing foreign nationals checklist

In this week's topic of the week article, Andrew Osborne of Hammonds LLP provides a checklist to help employers avoid illegal working and ensure compliance with the rules on sponsorship of foreign nationals. 

Sponsors that fail to comply with UK Border Agency (UKBA) requirements in relation to employing foreign nationals could have their sponsorship licence withdrawn and be liable for a civil penalty. 

• Topic of the week: Employing foreign nationals checklist Employers should ensure that staff who are responsible for recruitment understand the five-tier points-based immigration system. 

Previous articles in this topic of the week series

Employing foreign nationals: avoiding illegal working Employers should carry out document checks on all prospective employees, in line with UKBA guidance, to avoid employing workers illegally and to establish a defence against liability for payment of a penalty. 

Employing foreign nationals: points-based system Foreign nationals from outside the European Economic Area (EEA) and Switzerland who wish to enter the UK to work or study must qualify under the five-tier points-based immigration system. 

Employing foreign nationals: sponsorship Employers wishing to employ foreign nationals under tier 2 or tier 5 of the points-based immigration system must apply for a sponsorship licence to be able to issue certificates of sponsorship to potential migrant workers. 

More from XpertHR on employing foreign nationals and related topics

XpertHR subscribers have access to a wealth of material on employing foreign nationals and related topics - ranging from FAQs on avoiding race discrimination to quick reference tables on document checking. We pick out just some of the information available on the subject. 

Employing foreign nationals

Prospective employees who are not British citizens or nationals of the EEA or Switzerland normally need permission to work in the UK. An individual's immigration status affects whether or not he or she can work in the UK and the type of work that he or she can do and for how long. There are a number of resources on XpertHR to help subscribers understand the law on employing foreign nationals. See the Employing foreign nationals section of the XpertHR reference manual for details of the law, including information on the points-based system. How to employ foreign nationals explains the steps that employers should take when employing foreign nationals. Policies and documents on foreign employees also help employers through the process. For example:

• Employing people from abroad policy
• Letter confirming start date of foreign national's employment
• Work permits contract clause

XpertHR also offers answers to the following FAQs:

• Is it an offence to employ a foreign national who is subject to immigration control?
• Is it permissible to employ an asylum seeker?
• Does the Immigration, Asylum and Nationality Act 2006 apply to the employment of all non-UK citizens?

A list of Countries in the European Economic Area is available in the XpertHR quick reference section. 

Document checks

Employers must carry out document checks on all prospective employees to ensure that they do not employ individuals who are not permitted to work in the UK. By carrying out the correct checks and copying relevant documents employers can also establish a statutory excuse against liability for payment of a civil penalty. The XpertHR quick reference section provides easily accessible lists of the Documentation acceptable as proof of right to work in the UK - indefinite right to work in the UK (list A) and Documentation acceptable as proof of right to work in the UK - limited right to work in the UK (list B), as well as details of Proof of right to work in the UK - copying/recording of documents requirements. 

See also Letter asking an applicant to provide evidence of his or her right to work in the UK in the policies and documents section. 

There are also a number of FAQs about the obligation to carry out document checks. For example:

• 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?
• Is it the responsibility of the employer to require existing employees to produce documentation relating to their immigration status?
• Is a transferee able to rely on assurances from the transferor that it carried out the necessary checks on the transferred employees' immigration status, or must it carry out its own checks?

Race discrimination

Following the Employment Appeal Tribunal (EAT) decision in Osborne Clarke Services v Purohit [2009] IRLR 341 EAT, the policy of automatically excluding candidates on the basis of their right to work is likely to amount to indirect race discrimination. Personnel Today's Weekly dilemma: Automatically rejecting non-EEA job candidates explains the implications of the EAT decision. 

FAQs on the difficult issue of combining the obligation to avoid illegal working while not discriminating on racial grounds include:

• When taking steps to guard against illegal working does an employer risk being accused of race discrimination?
• How can employers reconcile the requirements of the Immigration, Asylum and Nationality Act 2006 with the provisions of the Race Relations Act 1976?

Language difficulties

Employers need to be alert to the fact that some workers from abroad may have a limited command of English. Personnel Today's Weekly dilemma: Health and safety training for foreign workers highlights the need to ensure that all workers understand health and safety instructions and training. We also provide an answer to the FAQ Where an employer has groups of employees of foreign origin is it acceptable to ask them to communicate in English while at work?