Reducing business risk when employing overseas workers in the UK

To avoid civil penalties (up to £60,000 per illegal worker) for employing individuals who do not have appropriate right to work, employers in the UK are required to conduct right to work checks on all employees (irrespective of nationality). For protection from civil penalties to apply, the check must be done in the prescribed manner and before the individual(s) commence work in the UK. Criminal prosecution can arise for employers found to have employed an individual that they knew or had reasonable cause to believe were illegal.

Businesses must ensure that all ’non-settled’ workers have the appropriate immigration status to work for them in the UK. Commonly, such status requires the individual to have obtained a visa sponsored by the employer.

Where immigration permission is required for work, this will typically require the UK employer entity to obtain and maintain a sponsor licence with the UK’s immigration authority (UKVI).

There are many and varied work visa routes/categories each with specific eligibility criteria. Criteria will usually include minimum skill and pay requirements for the intended UK-based role, and often a requirement for the individual to demonstrate English language proficiency to a specific standard.

Both the employer and its sponsored migrants in the UK will need to comply with certain requirements and conditions associated with visa sponsorship/immigration status. For the migrant, this includes the conditions applicable to their particular immigration status, which can include limitations on ancillary work and limitations on roles they can perform. For the employer, this will include the compliance duties for sponsor licence holders, including record-keeping, reporting, and co-operation with UKVI.

Some, but not all, immigration routes for work provide ‘qualifying residence’ that can lead to settlement for the individual (known as ‘indefinite leave to remain’). For those routes that do not, there is a risk the migrant worker will need to leave the UK (sometimes for a minimum of 12 months) at the end of their permission. It is therefore important for the employer and migrant to understand the status of their immigration route, and their options/position if/when their current leave expires.

Failure by an employer to comply with sponsorship duties and/or the requirements for prevention of illegal workers can result in the suspension or loss of its sponsor licence and, in turn, the cancellation of the immigration status of all its sponsored migrants. Loss of a sponsor licence may result in a ‘cooling off period’ during which a replacement licence cannot be obtained. Given the potential impact on business continuity in the UK it is imperative that sponsors carefully manage the risk of suspension or revocation.