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Work permits and employing overseas workers

It may be necessary to recruit workers from overseas in order to overcome skill shortages or to find multilingual workers, especially if you operate your business in different countries. However it's crucial to understand the rules around employing overseas workers to avoid any regulatory mistakes and face penalties.
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Currently any British citizen and nationals of any European Economic Area (EEA) countries or Switzerland are allowed to work in the UK without seeking permission. This situation may change following Brexit if the UK leaves the Single Market.

Nationals of non-EEA countries must apply for a visa and (for Tier 2 and 5 visas) be employed by a licensed sponsor in order to work in the UK.

Tier 1 – this is designed for investors and entrepreneurs who wish to invest in the UK, as well as a limited number of workers who have been endorsed as having 'exceptional talent' or 'exceptional promise'.

Tier 2 – this is the general type of visa which allows UK businesses to employ workers from non-EEA countries.

Tier 5 – this is designed to cover temporary workers undertaking certain roles (eg charity or religious workers and creative or sports professionals).

Tier 1 - Visa applications can be made online. Fingerprints and a photograph must be taken at a visa application centre and fees must be paid in order to process the application.

Tier 2 - Employers must first apply to become a sponsor and then assign a certificate of sponsorship to the prospective employee. The employee needs to submit a visa application, pay any relevant fees and wait for approval before starting work.

Tier 5 - Just as with Tier 2, Tier 5 visas require a certificate of sponsorship to process the application. Fees must also be paid in order to process the visa application.

All employers are obliged to check a prospective employee's right to work in the UK, prior to offering them a job, irrespective of whether they are claiming to be eligible to work in the UK. This involves:

  • Viewing the job applicant's original 'right to work' documents which prove that they have a right to work in the UK (eg British or EEA passport);
  • Checking that these documents are valid (eg photos resemble applicant and dates of birth match up); and
  • Making a copy of the documents which cannot be changed (eg photocopy), recording the date the check was made and keeping these copies for at least two years after the employee has ceased their employment.

For more information, see the right to work checklist from the Home Office.

The criminal penalties for hiring illegal workers can range from an unlimited fine to 5 years imprisonment.

You could also face civil penalties of up to £20,000 for each illegal worker for not carrying out the proper right to work checks or not carrying out the checks properly, in addition to the criminal penalties.

Your business details may also be published by Immigration Enforcement as a warning to other businesses not to employ illegal workers.

The majority of employment law in the UK comes from regulations set out by the EU. As a member of the EU, the rights and responsibilities of employees and employers were largely consistent across all EU countries, facilitating the employment of individuals in other EU countries. In 2021, at the end of the Brexit transition period, UK employment law may begin to diverge from EU employment law. This could present new challenges to businesses that employ EU nationals in the UK or UK nationals in the EU. 

Employing EU nationals in the UK

Businesses that currently employ EU, EEA or Swiss nationals in the UK should inform these employees that they will need to apply to the EU Settlement Scheme for settled status before 30 June 2021. Without this, the employees may no longer be eligible to live and work in the UK, which could disrupt your business and cost you valuable staff members. EU nationals seeking settled status must satisfy certain eligibility criteria. For more information on this eligibility criteria, please read our guide on Settled Status in the UK. 

Businesses that intend to employ EU nationals to come to the UK for work after 31 December 2020 will need to take into consideration the UK’s post-Brexit immigration system. After the transition period ends, a points-based immigration system will begin, setting certain requirements for foreign workers to enter the country for employment. The potential employee should:

  • have a job offer from an approved employer sponsor

  • for a position that requires at least A level (or equivalent) qualifications

  • speak English

  • be paid at least £25,600

Your business will need to register for a sponsor licence from the UK government in order to support foreign workers in satisfying these requirements. You should also check that the foreign worker has the right to work in the UK using the government’s Employer Checking Service online.

There is also a UK government Global Talent Scheme to fast-track immigration for highly-skilled scientists and researchers to enter the UK without a job offer. This scheme will continue to apply to EU, EEA and Swiss citizens after Brexit takes place. Individuals hired through the Global Talent Scheme will not require a business sponsor. 

Please note, none of the above applies to Irish citizens, whose current rights to live and work in the UK will not be affected by Brexit. 

Employing UK nationals in the EU

Leaving the EU means that UK nationals no longer benefit from the Free Movement of Peoples from 2021 onwards. Therefore, businesses that employ UK nationals in EU member states will need to take into account new immigration rules in the relevant jurisdiction of their place of work. This may include applying for a work permit or visa, and may take time to obtain. UK staff working in the EU that drive as part of their job may need to apply for an International Driving Permit. 

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