Immigration law: what businesses need to know about employing foreign staff

When it comes to business, your employees are your best asset. Selecting the right people and taking care of them in terms of salary, working conditions and benefits is of the utmost importance to the success of your business.

Finding the right employee can mean employing someone from a completely different country. Immigration law in the UK applies to foreign workers seeking employment in the UK but, as an employer, the onus falls on you to ensure that your staff have the legal right to work in the UK.

Not everybody does have the right to work in this country. When you start to investigate who you can employ, it can start to get a bit confusing. Put simply, Nationals of EEA countries and Switzerland are allowed to work in the UK without having to obtain a visa beforehand. However, Bulgarian and Romanian nationals will need to gain permission from the UK Border Agency to work in the UK. Potential employees from any other country are required to have visas which give them the right to work in the UK for a certain period of time.

In terms of immigration law, it’s the employee’s responsibility to ensure they have the appropriate accreditation, but it’s your responsibility to check that their visa is valid and real. For foreign nationals from outside of the EEA coming to the UK, there are a number of different visas they can obtain, so it’s a good idea to take a look through the UK Border Agency’s website or use this tool on the government’s website.

Some businesses view a visa as a negative because it limits the amount of time the employee can be working in the UK. However, if your foreign staff member turns out to be too good to let go, then you do have options. The main one is to apply to sponsor them. This allows the staff member to remain in the UK as an employee after their initial visa has expired. To qualify as a sponsor of an employee on the points-based system, you need to fulfil certain requirements. Firstly, you must obtain a sponsor licence. Secondly, you need to ensure that migrants comply with your terms and conditions and report any breaks in these (such as regularly turning up for work late). And thirdly, you need to give your employee a certificate of sponsorship so that they can apply for their new visa. If the employee’s application for a visa is refused (pre-sponsorship varieties too) then you can lodge an immigration appeal with the help of a solicitor.

While most people come to the UK with the appropriate visas if they intend to work, there are some who try and gain employment illegally. As a business employing staff, you need to ensure that all of your staff are legally entitled to work in the UK or else you will face heavy fines and possible imprisonment. If you’ve unknowingly employed an illegal worker then you can currently be fined up to £10,000. However, if you’ve knowingly employed an illegal worker then you can go to jail for two years and receive an unlimited fee. 

But before you’re fined or given possible jail time, you’ll receive a notification from the Border Agency of ‘potential liability’. If this is not resolved, you’ll receive another notification of ‘liability’ and a fine. If you do receive a fine you have 28 days to pay it. Otherwise you can appeal against this penalty to the UK Border Agency. You can also lodge an appeal to the county court. If it reaches this point, you’ll need a solicitor to represent you.

If you have any questions about employing foreign nationals or sponsoring workers, you can find plenty of immigration law advice on our website or give us a call on 0808 274 7557 and we'll put you in touch with your local branch.