Your legal questions answered by Nichola Carter, Head of Immigration Law at solicitors H2O Law LLP
Q. My workforce includes a number of foreign nationals who work on an employed and a self-employed basis. I am a little confused about the endorsements they have and would like to know what the main categories of immigration are for workers. Also, I understand that I can be held responsible if the foreign nationals I employ do not have permission to work in the UK. Can I be held responsible if the self-employed workers do not have permission?
A. As a general rule British and EEA citizens and those who have permanent residence (also known as settlement and Indefinite Leave to Remain) are free from immigration control. Therefore, providing that you are satisfied as to their nationality or status and can prove this if asked, you can employ them.
All individuals who wish to work in the UK must be able to prove whether or not they are free from immigration control and, if they are subject to such control, the terms upon which they may work in the UK. If an individual cannot prove to you that they are either free from immigration control or that they are subject to a form of immigration control which permits them to work for you under the terms upon which you wish to employ them, you should not employ them.
You should ask all employees and potential employees for proof of their status, not just those who you suspect are not free from immigration control. Such behaviour would be classed as racial discrimination.
A person who is subject to immigration control will have a document, usually placed in their passport or on a separate official letter, which outlines the basis upon which they may work in the UK.
The main categories of worker subject to immigration control are:-
• Student – a person subject to immigration control who is studying in the UK will have an endorsement in their passport which states “work and any changes must be authorised, no recourse to public funds”.
This means that the student can work up to 20 hours per week during term-time and full time during vacations. They are not permitted to have access to public funds. Students are not permitted to work on a self-employed/contractor basis.
If the student ceases study, their permission to remain and therefore work in the UK also ends. You should therefore check that any students you employ who are subject to immigration control are still studying.
• Work Permit Holder — rather confusingly, an endorsement in the passport of a work permit holder will also say “work and any changes must be authorised, no recourse to public funds”. However, in the case of a work permit holder, they are entitled to work full time for the employer who obtained the work permit for them. If your company did not obtain the work permit for them, they do not have permission to work for you and their employment should be terminated with immediate effect until you can secure a new work permit for them.
Work permit holders may not work on a self-employed/contractor basis.
• Highly Skilled Migrant — The endorsement in the passport of a person who has been granted highly skilled migrant status will state ‘limited leave to remain in the UK, no recourse to public funds.’
These individuals may work on an employed or self-employed/contactor basis.
• Working Holidaymaker — young people from Commonwealth countries can obtain a working holiday maker visa which enables them to visit the UK for up to two years and work for twelve months out of those two years.
The endorsement in their passport states “work and any changes must be authorised, no recourse to public funds”.
• Workers from the EEA Accession countries — employees from the EEA Accession countries (Czech Republic, Hungary, Slovakia, Estonia, Latvia, Slovenia, Lithuania, Cyprus, Malta and Poland) are permitted to be employed in the UK providing they obtain a Workers Registration Document from the Border and Immigration Agency for the first 12 months of employment. You must check that they have such a document.
They do not need to obtain any such document in order to be self-employed.
• Workers from Bulgaria and Romania — special rules apply to workers from Bulgaria and Romania. If they are to be employed, they must either have a work permit or HSMP approval.
• Spouses of British Citizens — a spouse of a British citizen who is subject to immigration control will have an endorsement which reads “limited leave to remain in the UK, no recourse to public funds”.
They are permitted to be employed or self-employed for as long as they remain married and living with their spouse. If you become aware that the marriage has broken down, you should cease to employ them unless they can prove that they have obtained further permission to work.
• Asylum seekers — any asylum seeker who wishes to work in the UK must be able to produce to you an Application Registration Card (ARC). If they cannot produce this document, you should not employ them.
• Indefinite Leave to Remain (also known as permanent residence/settlement) — individuals with this status will have an endorsement which states “Indefinite Leave to Remain”.
There are currently over 80 employment-related routes in the Immigration Rules and the above represent the most popular. It is essential therefore that thorough checks are made to establish whether or not a person who is subject to immigration control can work for you, and if they can on what basis.
Next month: How to cover yourself on immigration issues
While H2O Law LLP makes every attempt to ensure the accuracy and reliability of the information contained in this article the information should not be relied upon as a substitute for formal legal advice. Neither Mobile Business nor H2O Law LLP, their employees or their agents will be responsible for any loss, howsoever arising, from the use of or reliance upon this information.
If you have any queries about immigration issues, please contact Nichola Carter at H2O Law LLP on 020 7405 4700.