Employing foreign nationals: checklist

Andrew Osborne of Hammonds LLP concludes a series of articles on employing foreign nationals with 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UK Border Agency (UKBA) requirements in relation to employing foreign nationals could have their sponsorship licence withdrawn and be liable for a civil penalty.

1. Ensure that all prospective employees are made aware that they will be required to provide evidence of their right to work in the UK.

Strengthened rules on checking the immigration status of workers came into effect on 29 February 2008. Employers that employ foreign nationals who are not entitled to undertake the work in question face civil penalties of up to £10,000 per illegal worker. Employers that do so knowingly may incur unlimited criminal fines and/or a prison sentence of up to two years. A statutory excuse (defence) against liability for the civil penalty may be established if the employer conducts the necessary document checks before an individual commences employment. To avoid any confusion and delay, all prospective employees should be made aware of the need to provide documentary evidence of their right to work in the UK before they start work. Any offer of employment should be conditional on such evidence being provided and, if employed, the employee should also be required to inform the employer, in writing, of any subsequent changes in circumstances that might affect his or her immigration status.

2. Check documents in relation to all recruits, regardless of their apparent immigration status or racial or ethnic background.

Failure by an employer to check the documents of all recruits could result in it illegally employing an individual, or committing potential race discrimination in recruitment. The UKBA has published a code of practice (Prevention of illegal working - guidance for employers on the avoidance of unlawful discrimination in employment practice while seeking to prevent illegal working (PDF format, 183K) (on the UKBA website)) with the aim of providing employers with guidance on avoiding a civil penalty for employing workers illegally and not acting in a way that could be deemed discriminatory on racial grounds.

3. Ensure that the documents provided are from list A or list B.

Prospective employees should be required to provide one original document or two original documents in defined combinations. The lists of acceptable documents are specified in the Immigration (Restrictions on Employment) Order 2007 (SI 2007/3290) and set out in the Prevention of illegal working - summary guidance for employers (PDF format, 198K) and the Comprehensive guidance for employers on preventing illegal working (PDF format, 1.56MB) (both on the UKBA website). See also the XpertHR quick reference section for details of the documents that are in list A and list B.

4. Carry out document checks and take copies in accordance with the procedures set out in the guidance.

Employers must conduct a number of checks on the validity of the documents provided and take copies in accordance with the UKBA guidance. Copies of documents should be kept securely for the duration of the individual's employment and for a further two years once employment has ended.

5. Ensure that reminders are in place for repeat document checks where documents from list B are provided.

Documents from list B show only limited leave to live and work in the UK . If documents are provided from list B, employers must carry out repeat checks to retain the statutory excuse. The repeat checks must be done at least every 12 months until either list A documents are produced or the employee leaves employment. The dates of the repeat checks should be recorded.

6. Carry out document checks within 28 days of the date of any business transfer or service provision change.

According to the UKBA guidance, if employees have been acquired as the result of a business transfer or service provision change under TUPE, the documentary checks must be undertaken by the new employer within 28 days of the date of the transfer or service provision change. (See also the sponsorship notification requirements at checklist point 15 below.)

7. Ensure that staff who deal with recruitment understand the five-tier points-based immigration system.

The five tiers of the points-based system (PBS) cover all routes for foreign nationals from outside the European Economic Area and Switzerland to enter the UK to work or study. Each tier has different conditions, entitlements and entry clearance checks. The UKBA has published guidance for most of the tiers (and any associated sub-categories) on its website, although tier 3 is currently suspended and there is therefore no guidance for this tier. See Employing foreign nationals: points-based system in this series for more details of the system.

8. Ensure that migrants who are short-term visitors under the business visitor programme (ie migrants staying less than six months) meet the UKBA criteria and are planning to undertake one or more of the permissible activities.

The UKBA criteria include a requirement that the business visitor intends to leave the UK at the end of the visit, does not intend to study and can meet the cost of the return or onward journey. Applicants under the programme must also show that they plan to undertake one or more of the "permissible activities". These include arranging, negotiating or signing trade agreements or contracts, conducting site visits or speaking at one-off conferences that are not run as a commercial concern. See the Business and special visitors page of the UKBA website for more details.

9. When applying to become a sponsor under tier 2, 4 or 5 of the PBS, ensure that original or certified copies of the required supporting documents are sent to the UKBA, together with the correct fee, within 10 working days of making the electronic licence application.

The documents to be provided for the sponsorship application depend on the type of organisation applying for a licence. The UKBA has published lists by organisation type and these are set out in appendix A of the Guidance for sponsor applications - tier 2, tier 4 and tier 5 of the points-based system (PDF format, 1.3MB) (on the UKBA website). Full details of the applicable fees are also available on the UKBA website.

10. Ensure compliance with the UKBA guidance when allocating specific roles to members of staff as part of the sponsor application process.

Prospective sponsors are required to allocate specific roles to members of their staff: "authorising officer", "key contact", "level 1 user" and "level 2 user". The level 2 user role does not need to be filled provided that all administrative tasks are undertaken by the level 1 user. The level determines the type of access permissions the user has to the sponsor management system and the functions that the user can perform. Level 2 users have a more restricted range of permissions than level 1 users. A single person can carry out more than one role. The staff concerned must be based in the UK. Further requirements are set out in the guidance.

11. Ensure that level 1 and level 2 users do not disclose their sponsor management system passwords to anyone else.

If level 1 or level 2 users disclose their system password to anyone else, the UKBA may downgrade the sponsor's rating to a B-rating or, if it is already B-rated, withdraw its licence.

12. If a B-rating is awarded, ensure that the action plan is completed.

The UKBA may award an employer a B-rating when it assesses its suitability to be a sponsor. To assist a B-rated sponsor in making the improvements needed to be upgraded to an A-rating, the UKBA will draw up an action plan with the sponsor. The plan will generally need to be achieved over a period of three months, depending on the circumstances, at the end of which the UKBA will decide whether or not the sponsor should be upgraded, kept at a B-rating, have a new action plan drawn up or have its licence withdrawn.

13. Ensure that the necessary controls and procedures are in place to comply with the UKBA sponsor duties.

All licensed sponsors are required to fulfil certain duties. Some of these apply to all sponsors whereas others are specific to sponsors licensed under only certain tiers of the PBS. The generic duties comprise record keeping, reporting, complying with the law and cooperating with the UKBA. See Employing foreign nationals: sponsorship in this series for further details of sponsors' duties.

14. Ensure that sponsor licences are renewed on a timely basis.

Sponsors' licences last for four years unless they are withdrawn or surrendered. If a sponsor's licence expires and is not renewed, the organisation will lose the right to issue certificates of sponsorship and will not be able to continue acting as a sponsor for existing sponsored migrants.

15. Ensure that the UKBA is advised of business transfers and service provision changes within 28 days.

In the event of a TUPE transfer, and where the transferor and/or the transferee is a registered sponsor, one or both parties must notify the UKBA of the transfer within 28 days of the event, depending on the circumstances. See Employing foreign nationals: sponsorship in this series for more details of the responsibilities for notifying the UKBA about transfers.

Next week's article will be the first in a series of articles on the impact of the Stringer judgment and will be published on 3 August.

Andrew Osborne is Partner, Sports Group and Head of Business Immigration at Hammonds LLP (Andrew.Osborne@hammonds.com).

Further information on Hammonds LLP can be accessed at www.hammonds.com.