Right to work policy
Ensure that your business has a policy in place and that it is updated and monitored on a regular basis. This should ideally be carried out by your HR team. When offering employment to an individual it would be suitable to add a condition that their employment is conditional on them having the correct right to work.
Right to work checks
The candidate you are seeking to employ has provided you with all the necessary documents, passport, visa status document, proof of address and so on. Just because you have a visa document which is set to expire sometime in the future, it is vital you carry out checks with the Home Office.
You will need to ensure that the visa is genuine and also that it is still valid and no restrictions are imposed on it. As good practice, it is advisable that you carry out these checks on new and existing employees on a regular basis in case there are changes to the Immigration status which an employee has not informed you of. At the end of the day, it would be you as an employer liable for employing an illegal working.
If your employee has a pending application or you wish to check the up-to-date position of his/her status, it is advisable for employers to contact the Home Office Employer Checking Service. All calls should be logged on employee’s record; date, time, the name of the officer and what information was checked along with the response.
Documents from an employee
When hiring a new employee, ensure that you always obtain original documents from him/her. On certain occasions, certified copies of a document may be acceptable if documents are with the Home Office. When taking originals of passports, always ensure that you photocopy all visas contained in the passport along with the photographic page, any paper status documents, and biometric visa cards. When copying them ensure you date the copy once taken.
The Government has a Right to Work checklist that employers can work off to ensure the correct documents are obtained before hiring. This will also assist with your duty of compliance.
Copies of documents and record logs
Once you have employed a foreign worker it would be vital to keep a record of the employee’s work history; this can be physical or electronic. This should be monitored regularly along with all employees that are subject to immigration conditions. By regularly monitoring and carrying out checks this would give you, the employer, a defence to any possible penalty the Home Office may impose if you are found to be employing an illegal worker.
Once employed ensure you have a record or procedure in place to monitor the visa expiry dates of your employees. This is to ensure that you are aware of when each of your employee’s visas is due to expire and ensure that you do not miss important checks.
Close to the expiry of an employee’s visa you need to ensure that you monitor their visa. If they have made an application to extend their leave, request the employee to provide you with the information and then contact the Home Office Employer Checking Service to verify and check their eligibility for the right to work. Generally, if an employee has made an in-time application (prior to the visa expiring) to extend their leave, they would be entitled to remain working until a decision has been made.
It is important to check the Immigration Rules or seek advice before employing to see if you are entitled to employ a foreign worker. If you are seeking to employ a foreign worker who has a specific visa, your position on being able to employ them may be limited. You may need to see whether you will require a Sponsorship Licence to employ a Foreign Worker. This can, on average, take around eight weeks to obtain. There is a very detailed list of evidence that you would need to provide and you would need to carry out a Resident Labour Market test unless the position is exempt or is under the Shortage of Occupation list. This list is on the Government website.
We hope the above points would assist you in carrying out checks before/ during the time of employing a foreign worker. If you require further immigration advice, please contact our office to arrange an appointment to see our Immigration Solicitors.