If the candidate needs to be sponsored by the employer under Tier 2 of the immigration points-based system to perform the role in the UK, the offer of employment should not be issued to the candidate until:
the employer is satisfied that the requirements of the resident labour market test (RLMT) have been satisfied (Immigration Rules Appendix A: attributes, paragraph 78) or
that an exemption from passing the RLMT applies (Immigration Rules Appendix A: attributes, paragraphs 78A and 78B).
If the RLMT is required and an offer of employment is made before it has been completed, the RLMT may not be viewed as genuine by the Home Office and an application to sponsor the candidate may be refused.
This could also result in a downgrading or revocation of the employer’s sponsor licence if it is discovered during the course of a future audit visit.
For further information on requirements for overseas candidates, see Practice note, Business immigration: overview.
Permission to work in the UK
Employers have a duty to prevent illegal working in the UK by carrying out prescribed document checks on candidates before employing them to ensure they are lawfully permitted to work in the UK.
Employers are expected and to keep a record of the checks they have carried out to demonstrate this. Details of the checks that must be carried out are set out in the Immigration, Asylum and Nationality Act 2006.
The checks should then be repeated in respect of those individuals who have time-limited permission to work in the UK, prior to the expiry of their permission.
The Home Office has issued a right to work checklist (see Home Office, Employers’ right to work checklist) for employers to complete when conducting the checks.
An employer commits a criminal offence if it employs an illegal worker and knows, or has reasonable cause to believe, that the person has no right to do the work in question in the UK (section 21, Immigration, Asylum and Nationality Act 2006).
The maximum sentence on indictment for this offence is five years (increased from two years on 12 July 2016).
An employer may also commit a civil offence if it employs someone who does not have the right to undertake the work in question in the UK (section 15).
The civil offence can be punished by imposition of a penalty of up to £20,000 for each individual who does not have the right to work (increased from £10,000 on 16 May 2014).
However, an employer will be excused from paying the civil penalty if they are able to show that they complied with any prescribed requirements in relation to the employment of an individual before that individual started work (section 15(3)).
Immigration Skills Charge
In some cases, the employer will need to pay an Immigration Skills Charge per migrant worker for each year it is intended that they work in the UK. This came into effect in April 2017.
For more information, see Practice note, Business immigration: overview: Immigration Skills Charge for employers.
In order to avoid claims for race discrimination, employers should ask the same questions of all applicants regarding permission to work in the UK at the relevant stage of the recruitment process and not just those who appear to be of non-British descent.
To assist employers, the Home Office has issued a Code of practice for employers: Avoiding unlawful discrimination while preventing illegal working, which came into force on 16 May 2014.
Failure to observe the code may be taken into account by an employment tribunal in deciding whether there has been discrimination.
The EHRC Code notes that many people from ethnic minorities in the UK are British citizens or are otherwise entitled to work here and that employers should not make assumptions about a person’s right to work in the UK based on race, colour or national origin.
Instead it recommends that eligibility to work in the UK should be verified in the final stages of the selection process rather than at the application stage, to make sure that the appointment is based on merit alone, and is not influenced by other factors (paragraph 16.67).
Depending on the employer’s recruitment process and the type of job being filled, candidates might be asked for relevant documents when they are invited to an interview or when an offer of employment is made. It is important to carry out the necessary right to work checks before employment begins.
If immigration approval or a specific working visa is required for the individual to work in the UK, the employer should make any offer of employment conditional on the necessary approvals being obtained and, where possible, allow for flexibility with the start date, as there may be a delay whilst approval is obtained.
Right to Work Checks
In January 2019 the Home Office updated its Code of Practice on Preventing Illegal Working. The Code of Practice sets out the prescribed checks that employers should conduct to avoid a civil penalty in the event of illegal working (see page 13).
It replaces the Code issued in May 2014, and reflects the Immigration (Restriction on Employment) (Code of Practice and Miscellaneous Amendments) Order 2018, which provides that employers may establish a statutory excuse against liability for an illegal working civil penalty by conducting an online right to work check using the Home Office Online Right to Work Checking Service.