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THE WORK ETHIC
PO Box 28287
Edinburgh
EH9 2WU
Telephone: 0131 662 6988
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EDINBURGH
EH4 6NT
Telephone: 0131 336 1619

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Employing non-EU workers – What employers need to Know

Employing overseas workers who come from within the European Union is a relatively simple process these days, and doesn’t even require a work permit. Employing non-EU workers is a more complex matter however, and employers need to pay special attention to the regulations concerning this.

Checking employees rights to work in the UK

In order for someone from outside the EU to legally work in the UK, they must have the right to do so. This takes the form of a work permit or similar document. Generally speaking a ‘work permit’ is a commonly used and informal way of referring to an individual’s right to work in the UK. As their employer it is your legal duty to ensure that they have the correct documentation and that it is genuine.

If you knowingly employ a non-EU worker who is over the age of 16 and, “is subject to immigration control and has no permission to work in the UK,” or who, “works for you in breach of their conditions of stay in the UK,” you will be committing a criminal offence under the Immigration, Asylum and Nationality Act 2006.

Even if you were not aware that the employee did not have the right to work in the UK, you may be liable to pay a civil penalty of up to £10,000 per worker. However the exception to this rule is if you have carried out the specific checks on the worker’s original documents which demonstrate their right to work in the UK. If the person’s stay in the UK is time-limited then you are required to re-check these documents every 12 months. The official list of acceptable documents which can be used to check an individual’s right to work in the UK can be found here.

Points based system

In most cases, a non-EU national will need to apply for the right to work in the UK under the points based system currently used. This operates on five tiers as follows:

  • Tier 1 – Highly skilled workers
  • Tier 2 – Skilled workers with a job offer
  • Tier 3 – Low-skill workers filling temporary labour shortages which are specific in nature
  • Tier 4 – Students
  • Tier 5 – Youth mobility and temporary workers

Tier 1 workers are generally able to stay and work in the UK without having a specific job offer, in many cases non-EU nationals must be sponsored by an employer. If you plan to do this you must first check that you are able to do so, and then apply for a sponsorship licence from the UK Border Agency. Extensive information pertaining to this is available at the Home Office’s website here.

Once you have acquired your sponsorship licence you can issue prospective workers with a ‘certificate of sponsor’, providing that they meet the points requirements needed to live and work in the UK. Points are awarded based around factors such as qualifications and skills, ability to speak English, expected salary etc.

As a sponsor of a non-EU worker, you are legally required to uphold certain duties to ensure the integrity of UK border controls and immigration regulations. Details of these can be found here.

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"Faced with a complex industrial dispute involving three parties, Callander Golf Club called on the expertise of The Work Ethic to help resolve the situation. Sound legal advice backed by high-level negotiating skills led to an out-of-court settlement to the satisfaction of the Firm’s clients."

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