Small businesses are often confused about employing migrants. Many small businesses are keen to use migrants to fill skill shortages – and believe such workers have an excellent work ethic – but are unsure of the rules and regulations. What is the difference between employing a Polish worker and a Romanian? A Latvian and a Bulgarian? Who needs registering and who needs authorisation? Do workers from the original EU countries like France and Germany still have to provide documents? Is it true that even UK workers must soon show their passports before being employed in this country? What about seasonal workers? What paperwork must you keep and for how long? Duport aims to answer the many questions small employers have when considering hiring migrants from the European Union and to highlight where to go for further information. There are also website links so employers can check compliance online, a list of FAQs and a glossary. The aim is to make it as easy as possible for small businesses to understand and comply with the law when employing migrant workers.
If you currently employ staff from outside the UK, or are planning to, you are legally required to make checks on their right to work here or face prosecution, possibly imprisonment. There are documents to check and evidence to keep. In 2008 the Illegal Working Action Plan, part of a bigger government drive to tackle illegal immigration comes into force and all UK workers will have to present their passports before being employed so it will become the norm for businesses to ask for passports and documents and keep additional paperwork on all employees.
Fines will increase next year and may be unlimited, there will be a big increase in the number of spot-checks on companies and employers may be liable for any unpaid taxes and social security payments, as well as the cost of repatriating the worker. Firms which don’t comply with the law could also be barred from tendering for public sector contracts.
But in fact if you follow the rules outlined below it is easy to stay legal and enhance your workforce and business. What is more if you use the government online checking service and follow the fairly straightforward instructions you have an absolute defence against prosecution.
Certain European workers from the European Economic area are legal and have full freedom to work in the UK, others need registration and others need authorisation before stating work. Restrictions on Romanian and Bulgarians are the toughest on any new members of the EU except for a small group of skilled people, plus around 20,000 agricultural workers and the self employed. Then there are the workers who cannot work in the UK under any circumstances.
Initially it can be confusing for a small business but the benefits of employing certain workers make it well worth the hassle of checking the legal procedures and the extra paperwork involved. Treasury figures show that inward migration adds about 10% to economic growth each year. The Bank of England has also welcomed the effect migrant labour has had on pay settlements by stopping them from picking up more sharply in response to recent higher inflation. In addition, a recent survey by the British Chambers of Commerce show the reasons for employing migrant workers are often that they are better that the British workforce. The survey found that a quarter of firms employed migrants because there was a shortage of local candidates with the required skills and that over 23% thought migrants had a better work ethic. Significantly almost 70% of those surveyed did not believe the government offers enough support and guidance to business when taking on workers from abroad. So, who can you employ and what action do you need to take?
What exactly is the law on employing migrants from Europe?
European Economic Area (EEA) Nationals from: Austria, Belgium, Cyprus, Denmark, Finland, France, Germany, Greece, Iceland, Ireland, Italy, Liechtenstein, Luxembourg, Malta, Netherlands, Norway, Portugal, Spain, Sweden, Switzerland, United Kingdom – and their immediate family members – mostly have full freedom to work in the UK. Even so, as an employer you still have to check documents and keep evidence.
Action to take
Nationals from the above countries do not need to register with the Home Office, but they do need to provide certain documents outlined below. The documents must be originals – again it is your responsibility as an employer to verify. This includes examining photographs to ensure they look like the actual person you are employing, searching for any expiry dates that would invalidate documents and checking stamps and endorsements (e.g. do the passport stamps allow the applicant to do the type of work you are offering?). Obviously check the same name is used on all documents and that the date of birth is consistent with the age of the applicant (although this can be tricky as appearances can be deceptive.) You can click on the links on the list below see what genuine documents should look like. Once satisfied the candidate’s documents are genuine, you must keep copies either by photocopying or scanning the documents into your computer using secure software. Photocopies can be securely stored with personnel records, and scans of documents must be securely stored on secure media, such as a CD-R. Storage media should ensure that the information cannot be deleted, altered or overwritten once saved i.e. they must be an indelible record.
The original documents must be copied immediately – you are not allowed to keep the originals for more than one day. The following pages of passports or travel documents should be photocopied or scanned:
- front cover
- pages with personal details, including name, date of birth, nationality and document number
- page with photograph and signature
- page containing the valid, relevant UK Government stamp or endorsement
- other documents should be photocopied in their entirety
- these copied or scanned documents must then be kept securely on file, usually for a period of 3 years, starting from when the employment finishes. If you have seen, checked and copied the appropriate original documents, then you have established your statutory defence against prosecution.
One of the following documents is enough evidence for workers from the above mentioned countries:
- • a passport showing that the holder is a British citizen
• a passport showing that the holder has right of abode in the UK
• a national passport or national identity card showing that the holder is a national of an EEA country or Switzerland
• a residence permit issued to a national from an EEA country or Switzerland
• a passport or other document issued by the Home Office which has an endorsement stating that the holder has a current right of residence in the UK as the family member of a national from an EEA country or Switzerland who is resident in the UK. A passport or other travel document endorsed to show that the holder is exempt from immigration control, can stay indefinitely in the UK, or has no time limit on their stay
• a passport or other travel document endorsed to show that the holder can stay in the UK – and that this endorsement allows the holder to do the type of work you are offering provided it does not require a work permit
• an Application Registration Card issued by the Home Office to an asylum seeker stating that the holder is permitted to take up employment.
If the worker cannot produce one of the documents listed above they may provide two of the documents below, either combination 1 OR combination 2. But not one document from each combination as that will be invalid.
Combination 1
A – A document must have the permanent National Insurance number and name of the job applicant. This document could be:
- P45
- P60
- National Insurance number card
- document from a Government Agency
- a pay slip from a previous employer
The provision of a document from List A is ESSENTIAL to Combination 1.
In addition to document A, you must check and copy one of the following documents listed in B to H.
B – A full birth certificate issued in the United Kingdom, which includes the name or names of the holder’s parents; or
C – A birth certificate issued in the Channel Islands, the Isle of Man or Ireland; or
D – A certificate of registration or naturalisation stating that the holder is a British Citizen; or
E – A letter issued by the Home Office to the holder which indicates that the person named in it can stay indefinitely in the United Kingdom, or has no time limit on their stay; or
F – An Immigration Status Document issued by the Home Office to the holder with an endorsement indicating that the person named in it can stay indefinitely in the United Kingdom or has now time limit on their stay; or
G – A letter issued by the Home Office to the holder which indicates that the person name in it can stay in the United Kingdom, and this allows them to do the type of work you are offering; or
H – An Immigration Status Document issued by the Home Office to the holder with an endorsement indicating that the person named in it can stay in the United Kingdom, and this allows them to do the type of work you are offering.
Combination 2
A – A work permit or other approval to take employment that has been issued by Work Permits UK.
The provision of a document from A is ESSENTIAL to Combination 2.
In addition to document A, you must ensure that the work permit applicant has valid leave to enter or remain in the United Kingdom by checking and copying one of the following documents listed in B and C.
B – A passport or other travel document with a valid endorsement to show that the holder is able to stay in the United Kingdom and can take the work permit employment in question; or
C – A valid document issued by the Home Office to the holder confirming that the person named in it is able to stay in the United Kingdom and can take the work permit employment in question.
If the job applicant provides one document from combination 1 and one document from combination 2, this is not sufficient to provide the statutory defence.
EEA nationals from Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Slovakia, Slovenia must not only obtain the same documentation evidence outlined above for other EEA workers, but also provide evidence that each worker is registered with the Home Office under the Worker Registration Scheme , unless exempt. The scheme was set to monitor the participation in the UK labour market of workers from eight of the ten countries that joined the EEA on 1 May 2004.
Action to take
If you want to employ a worker from one of the above eight countries (known as A8) you must do the following:
- obtain documents required above for any EEA members and check in exactly the same way
- make the necessary checks on those documents
- Store candidate’s information correctly and safely as outlined above
- see if candidates should register with the Worker Registration Scheme – this is the vast majority of Czech’s, Estonians, Hungarians, Latvians, Lithuanians, Poles, Slovakians and Slovenians must register but generally there is no problem.
As soon as the worker takes up employment for you they must apply to register with the home office and you the employer must, within one month of them starting work must:
- provide them with evidence of employment in the form of a letter or a contract
- take a copy of their registration application and retain this until you receive notification from the Home Office that this worker has been registered
- after successful registration you should retain the copy of the registration certificate sent to you
- if exempt the worker must still provide full original documentary evidence – see below.
You may continue to employ an unregistered worker whilst their application is processed. During this period, you must retain your copy of their registration application until you receive notification that the worker has been registered.
If you continue to employ an unregistered A8 worker after one month and have not retained a copy of their Home Office application form, or they do not receive a certificate of registration, then you may be committing a criminal offence. Similarly, if the Home Office notifies you that your employee’s application has been refused and you continue to employ that person, you may also commit an offence.
But as long as you copy your worker’s application form, retaining a copy of their registration certificate, or check a document showing that your worker is exempt from the scheme and as long as you have not received a refusal notice from the Home Office you will not have committed any offence. Equally, if you have established that your worker is exempt from registering and you have retained a copy of the evidence provided you have a defence.
In the overwhelming majority of cases, the Home Office will register your worker and send you a copy of your worker’s registration certificate confirming this. It will be sent by Work Permits UK, printed on secure paper and will contain the applicant’s name, unique reference number, job title, start date, your name and address as the employer and the issue date of the certificate. Remember that the registration certificate expires on the date that your worker stops working for you.
Who is exempt?
Some A8 workers such as certain seasonal agricultural workers (see below) will be exempt from the requirement to register. Such workers must provide you with documentary evidence of their exemption. You should check for one of the following documents and make sure you keep copies secure.
- a Residence Permit issued by the Home Office confirming the holder is an EEA National or Switzerland; or
- a national passport or travel document containing an endorsement which states that the holder is also a dual nationality of the UK, Switzerland or one of the EU/EEA countries listed above, that is not an A8 country; or
- a national passport or travel document containing a valid endorsement which states that the holder is a family member of an EEA or Swiss national.; or
- a national passport or travel document containing a valid endorsement which shows that the holder has Indefinite or Exceptional Leave to Enter or Remain in the UK, or has been granted Limited Leave to Enter or Remain with no immigration restrictions on employment; or
- A8 nationals on the Seasonal Agricultural Workers Scheme (SAWS) will be issued with a SAWS card. This document will be valid until the expiry date on the document, and while they remain on the SAWS scheme; or
- A8 nationals here on a self-employed basis (for the purpose of the Worker
Registration Scheme, you will employ an A8 worker if you directly pay their wages); or - A8 nationals who have been employed legally and without interruption in the UK for 12 months. (This means that any periods of unemployment within those 12 months do not exceed 30 days in total). This can be proven by official documents such as a P60, or previous WRS certificates.
You should check, make and retain a copy of these document/s if your worker is exempt from the registration scheme.
EEA workers from Bulgaria and Romania
Bulgarian and Romanian workers must get authorisation from the Home Office before starting work, unless they are exempt. It is your job as an employer to check whether a worker needs to be authorized or is exempt. And it is your job to keep copies of such documentation.
Since January 2007 employers must do additional checks on workers from the above two countries. These workers, known as A2 workers have to prove authorization to work in the UK or prove exemption. So, as well as carrying out the checks outlined above for EEA members and the checks outlined for A8 worker(i.e. workers from Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Slovakia and Slovenia) .Romanian and Bulgarians must also provide you with documentary authorization unless they are exempt. Even if they say they are exempt from registering you must still obtain documentary evidence to protect yourself from prosecution.
The additional documentation Romanians and Bulgarians need is either of the following
- their valid accession worker authorisation document
- a valid exemption registration document.
Until you have established that a Bulgarian or Romanian worker is able to work in the UK legally and have seen the valid accession worker authorisation document or the valid exemption registration document (and have taken copies of them) you cannot leally employ a Bulgarian or Romanian.
An accession worker authorization document can in fact be one of three documents. It is
- a document issued before 1 January 2007 that grants Leave to Enter or Remain in the UK and entitles that person to do the work that you are offering, for example, a work permit
- a seasonal agricultural work document
- an accession worker card. An accession worker card provides authorisation from the Home Office for the holder to start working for you. The card will also set out any conditions on their employment.
If a work permit was obtained after 1 January 2007, the employee will also need to apply for an accession work card before they can start work, or they may present you with one of the following:
- a blue authorisation certificate showing full access to UK labour market
- a yellow authorisation certificate confirming person is here as a student and has permission to work for 20 hours a week
- a UK residence permit showing that a person has leave to remain and has permission to work that has not expired
- an indefinite leave to enter or remain endorsement in their passport
- a no time limit stamp in their passport.
The Home Office will issue registration certificates to eligible A2 nationals, if satisfied that the applicant is actively seeking employment in the UK and is highly skilled. Where the A2 worker is not subject to the worker authorization, they will be issued with a registration certificate that states they have unconditional access to the UK labour market.
If your A2 worker informs you that they are exempt from registering, you will still need to ask them for documentary evidence of this so you have a statutory defence from conviction for employing an unregistered A2 worker.
The documents you should ask them to produce are explained below, under ‘Exemptions from the A2 Worker Authorisation Scheme’.
Those A2 nationals who have a certificate that does not include unconditional access to the UK labour market may apply for access after 1 January 2007 if they can satisfy the Home Office qualifying criteria.
The only Romanian and Bulgarian migrants who will be exempt are a small group of skilled people and a certain number of agricultural workers (known as Seasonal Agricultural Workers (SAWA) and the self employed.
What next?
The rules are constantly changing and employers need to keep up to date. EU workers, including those A2 and A8 workers have a system in place to enable them to work legally throughout Europe. Once you know the system it is easy to follow. While it is easier for Europeans to work in the UK, foreign nationals will find it much more onerous to even live here let alone work. Plan for foreign nationals include: tougher checks abroad – using biometric visas and compulsory identity cards for foreign nationals. The UK Borders Bill requires foreign nationals living in the UK from outside the EEA to apply for biometric ID. The plan is that this will help tackle fraud, illegal working and multiple identities. There will be an employee checking service for managing migration, stiff penalties for rule breakers and a national media and direct mail campaign on illegal working, reminding employers of their responsibilities.
The idea is to make it more difficult for illegal immigrants to find work in the UK. As mentioned earlier the new initiative will require every job applicant to produce a passport as proof of identity – even if they are British born – to prevent any discrimination. Employers will have to photocopy and keep an ever increasing mountain of paperwork on every single member of staff and in effect act as immigration officials. ‘Not only will these recommendations to check passports place an extra burden on small firms, who have no specialist human resources department to help or advise them, but it will also financially penalize businesses for the failure of the Government’s immigration policy‘, says Matthew Knowles, spokesperson for the Federation of Small Businesses.
