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From 1 January 2021, workers from the EU were only allowed to work in the UK if they met the points-based immigration system, which focuses on knowledge, skills and talent and has agreed minimum salary requirements. As many of you know this has changed the way UK employers can recruit workers from the EU, as they are now subject to the same immigration restrictions as employees from the rest of the world.

Essentially the new system is more time-consuming and harder to navigate with UK employers often struggling to employ the talent they need from Europe. This was experienced a few months ago with the HGV driver shortage, which was only partially resolved with some form of Government intervention.

Points mean jobs

Under the points-based immigration system, anyone coming to the UK for work must meet a specific set of requirements for which they will score points. Visas are then awarded to those who gain enough points. This enables UK employers to recruit skilled workers from around the world.

To hire the most eligible employees from outside the UK, i.e., doctors, nurses, teachers and engineers, you will need a sponsor licence. However, the ability to employ unskilled workers from overseas is now almost impossible, hence the staffing issues we see within the hospitality industry.

The importance of a right to work policy

As an employer it’s your responsibility to not offer work to individuals where they cannot establish a right to work. When a right to work is clearly demonstrated, you need to check and copy specific original documentation for any prospective new employees.

Government guidance for employers on preventing illegal working sets out when checks must be made, what documentation is acceptable, what employers need to do including tips on how to check authenticity and what to photocopy and retain. If someone cannot provide documentation to establish a right to work, you may in limited circumstances contact the Home Office for positive verification.

Any check must be done in a non-discriminatory manner and be completed before employment begins, but re-checking is also essential for employees with time-limited immigration status. Employers can also use an online checking service if the individual gives their consent and gives right to work information in real time.

We advise you to have a comprehensive right to work check policy in place and ensure all relevant managers have received sufficient training. In addition, all your contractual and recruitment paperwork needs to reference the right to work process. It will also be helpful if you can provide evidence of your processes, policies and systems if and when required.

Employing illegal workers

It’s a criminal offence to knowingly employ a person who requires, but lacks, immigration permission to be in that role. If an employer is found to be knowingly employing an illegal immigrant, they could face an unlimited fine and five years in prison, whilst Company Directors face being disqualified and the business would undoubtedly experience severe, long-lasting reputational damage.

However, if as an employer you find that you have accidentally employed an illegal worker or their permission has been revoked, we suggest you get urgent advice and look to terminate their employment in a lawful manner. Remember as an employer, you are still responsible if for example the documentation you checked was not genuine, or someone was pretending to be someone they weren’t.

Finally, if you find out that an employee is an illegal immigrant you must report them via the Home Office website, or by calling the Immigration Enforcement hotline. You can do this anonymously and in confidence if necessary.

How can we help?

If you need further help with your paperwork, policies, processes and procedures to reduce the risk of employing an illegal worker, please contact caroline.robertson@actifhr.co.uk for non-obligatory advice.