Many UK businesses rely on employing migrant workers to be able to survive – and while this is a great strategy, it’s worth having advice from the best employment lawyer you can find, to make sure you get it right as an employer.
Employing migrant workers allows many businesses to access skills that are lacking in the domestic labour market and the settled workforce. In some cases, it is the migrant workforce that is prepared to carry out jobs that those in the settled workforce are less keen to take on. In order to reap the rewards of employing migrant workers, employers need to be aware of how the Immigration Rules and certain employment laws operate, to make sure they don’t end up facing significant penalties. Choosing a law firm with expertise in Immigration Law and employment law is advisable!
Recruitment and right to work checks
Right to work checks apply to every employee. Employers must follow a straightforward procedure to verify that every employee has the right to work in the UK. It’s a criminal offence to knowingly employ someone who does not have the right to work in the UK, and the best employment lawyers will agree that it is well worth investing time to ensure every employer employing migrant workers has a system in place to obtain original documents from every employee – whether it is a passport or other identity document – confirming the right to work, checking them in the presence of the individual concerned, and keeping the appropriate information relating to the right to work.
An employer can seek to reduce the financial penalties that might be incurred from a breach if it is able to show that it did carry out the correct checks and an employee is subsequently revealed to be working illegally in the UK.
Those employing migrant workers will also be interested in the case of Afzal v East London Pizza Ltd t/a Dominos Pizza, a helpful case for top London employment lawyers and the employers they represent concerned about falling foul of the Immigration Rules, but at the same time wishing to respect the rights of their employees. Mr Afzal, a Pakistani National married to an EU citizen, had provided his employer with evidence of his right to work, but needed to make a new, in time, application for his permanent residence for his right work in the UK to continue. Although he did make his application in time, he did so very late in the day, and the employer terminated his employment in order not to breach the Immigration Rules. He had no right of appeal.
Although the employment tribunal thought it was reasonable for the employer to refuse to offer a right of appeal, the employment Appeal Tribunal disagreed, finding that the right of appeal is practically universal. The appeal would have allowed Mr Afzal to prove that he had made his application and he could have been reinstated with no breach of the Immigration Rules. You can read our blog about the case here.
An organisation wishing to employ a skilled worker from outside the EEA for the first time will have to obtain a Tier 2 Sponsor Licence. This should not hold up the recruitment process significantly – but it’s vital to get not only the initial application right, but to ensure that the ongoing compliance regime is satisfied. The employer needs to ensure that a relatively sophisticated system of staffing, checks and record keeping is in place to be able to grant certificates to skilled workers under the Tier 2 Sponsor Licence – hardly surprising given that this represents an outsourcing of some of UK Visas and immigration’s monitoring roles. Compliance visits are not uncommon – indeed, it has been reported that these are on the rise – so it’s vital to take legal advice from not only a top employment law firm, but one with extensive experience in Immigration Law, such as a Legal 500 immigration solicitor.
It’s not only recruitment that can cause problems for organisations employing migrant workers. It is not uncommon for a skilled worker on a Tier 2 visa to resign and seek to work for a new employer in the UK on a new Tier 2 visa. At the point where the new visa is granted, that individual is not permitted, under the Immigration Rules, to work for the original employer – but may still have a period of notice to work out in order to fulfil the contract of employment. This is a key concern for many employers employing migrant workers – and it will be important to take advice on each specific situation to ensure that they do not find themselves facing compliance action for breach of the Tier 2 Sponsor Licence – and potentially losing their licence altogether.
OTS Solicitors in the heart of London offer practical and intelligent employment law and Immigration Law advice to employers employing migrant workers. Our unrivalled experience in all aspects of immigration and as Business immigration lawyers as well as our talented UK employment lawyers mean we are a safe pair of hands in what can be a legal minefield. Call 0203 959 9123 to discuss your employment and immigration issues with us today.
Posted on: Friday, 03 August, 2018