For employers, the option of recruiting from the global talent market can be critical to maintaining operations and, importantly, competitive advantage. But UK employers face increasing recruitment immigration risks when hiring non-UK nationals. Penalties for employing illegal workers and failing to comply with your immigration duties are substantial and best avoided.
Fundamentally, your recruitment practices should enable you to find the best candidates for your needs – individuals with the right skills, experience, competencies. Where the UK labour market does not offer the solution, turning to the global market for recruitment may be a solution.
This has become common practice in sectors such as health and social care, tech, hospitality, leisure, agriculture, construction, where domestic labour shortages are leaving employers with little choice than to look overseas to meet talent needs.
There are however a number of risks employers should be aware of when recruiting non-UK workers.
At every stage of the recruitment process, you are potentially facing immigration compliance issues.
Sponsoring migrant workers & eligibility
To employ migrant workers under the points-based visa system, you must ensure you are meeting your compliance duties as a sponsor licence holder, that the worker meets the eligibility requirements under the sponsored visa route, and that the role being recruited for also qualifies under the sponsored visa route. When issuing a Certificate of Sponsorship to a sponsored worker, you are confirming to the Home Office that these role and candidate requirements are being met.
If the Home Office alleges that your organisation has breached its duties or the rules, you face enforcement action, which could include downgrading or suspending your sponsor licence.
Shortlisting, interviewing & discrimination
When recruiting, an employer cannot make assumptions about a person’s right to work or immigration status on the basis of their ethnicity, accent, physical appearance or the length of time they have lived in the UK.
Under the Equality Act, it is unlawful to discriminate against a job applicant or employee on the basis of their race, which includes:
- colour;
- nationality (including citizenship);
- ethnic origin; or
- national origin.
While Britain remains a part of Europe, the Free Movement of Labour principle still applies. This means that under the Equality Act, employers must give equal weight to applications from UK citizens and EU nationals. Arbitrary requirements such as hiring British workers only, would be discriminatory.
Formal processes for shortlisting, interviewing and selecting canditates should take into accont the underlying compliance risks, and ensure personnel are trained and understand the implications of non-compliance.
Onboarding & Right to Work compliance
The Immigration Rules are unequivocal in that an employer is not permitted to employ an individual who does not have a valid Right to Work in the UK.
Failure to comply with your Right to Work duties can result in a civil penalty, sponsor licence downgrade or revocation.
Your duties as an employer are to:
- check and keep copies of original, ‘acceptable’ documents before someone starts working for you;
- carry out repeat checks at least once every 12 months if a person has a time limit on their stay; and
- not employ a person in breach of any restrictions such as type of work or the amount of hours they can work.
This process applies most apply to all employees. Singling out nationalities could be grounds for discrimination.
Your onboarding process should be geared to ensure consistent and accurate compliance with your Right to Work duties.
This could require use of technology to capture all documentation at the point of onboarding, and notify about the expiry of any permissions and actions to be taken.
What can HR do to manage risk and ensure organisational compliance?
HRs should ensure the ongoing accuracy and suitability of policies and processes. It is also critical to ensure line managers and those with recruitment responsibilities are trained on their responsibilities and best practice procedures, particularly in response to any changes in immigration rules, which are common.
We are highly experienced immigration legal advisers to employers, providing guidance on all areas of immigration compliance and risk management, and global mobility strategy. If you have a query relating to hiring overseas personnel, please get in touch.
Legal disclaimer
The matters contained in this article are intended to be for general information purposes only. This article does not constitute legal advice, nor is it a complete or authoritative statement of the law, and should not be treated as such. Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.
Author
Gill Laing is a qualified Legal Researcher & Analyst with niche specialisms in Law, Tax, Human Resources, Immigration & Employment Law.
Gill is a Multiple Business Owner and the Managing Director of Prof Services - a Marketing & Content Agency for the Professional Services Sector.
