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Conditions of Service - Overseas Workers

RECRUITING FROM OVERSEAS - ENSURE YOU KNOW THE RULES

ARTICLE ORIGINALLY PUBLISHED APRIL 2008

QUESTION

I know from the media that the immigration rules are changing but I am terribly confused?

THE LAW

You are right the immigration rules have been changing on a phased basis and will continue to change into 2009. There have been rules regarding overseas workers taking up employment in the UK for many years and, as the numbers have increased year on year the Government has changed the legislation. We are all aware of the increased numbers of overseas workers in Salons. Recent figures show that overseas workers make up 12% of the population of a working age in the UK.

The Immigration, Asylum and Nationality Act dates back to 2006, phase one of the changes came into force on 28th February 2008. Employers who employ "illegal" overseas workers are now liable to a fine of up to £10,000 per employee. In additional they can be charged under criminal law and face a prison sentence and an unlimited fine.

Employers who have carried out the required checks but still got it wrong may still be fined but to a much lesser extent therefore it essential you obtain and check the applicants documents.

WHO ARE OVERSEAS WORKERS?

This is simplified but broadly the categories are:

  • CATEGORY 1 - Individuals who, with minimal restrictions, can come and work in the UK. These include those from the established EEA countries (you might remember it as the EEC) e.g. France, Germany, Spain.
  • CATEGORY 2 - Individuals have limited restrictions on their ability to work in the UK are from countries known as the "Accession 8" EEA countries e.g. Czech Republic, Lithuania, and those from the Commonwealth and those with "UK Ancestry".
  • CATEGORY 3 - Employees requiring full permission to work in the UK currently via a Work Permit.

Work permits will continue to be required during the remainder of 2008, when they will be replaced. Remember a Work permit is normally issued for a period of up to 5 years initially and are for a specific post, they are not always transferable.

WHAT IS NEW?

As I mentioned above the fines for employers are certainly new. They have been heavily criticised by many Employer groups as passing the burden for policing immigration unfairly to small businesses.

In 2009 only Employers who are Licensed and Registered with the Home Office will be able to issue a Licence to an overseas potential employee in Category 3 for employment. The individual will then have to apply to enter the UK by a process similar to that, which exists currently for work permits.

The Government has issued guidance to Employers regarding the documents, which they should inspect and copy when recruiting and this can be viewed at www.bia.homeoffice.gov.uk/employers.

HELPFUL HINTS

  • Remember to successfully appoint and have a chance of obtaining a permit you must show that you have been unable to recruit a suitably qualified or experienced "resident" (i.e. a national of any EEA country) worker. It will be impossible to do this unless you have actually advertised the post.
  • You must give the same terms and conditions of service to your resident and overseas workers.
  • Ensure you ask all candidates coming to interview to bring the documentation required and do your best to authenticate, copy, and retain it.
  • To avoid claims of racial discrimination you should ask all candidates to provide the documentation rather than trying to identify which might fall into the overseas category.
  • If you are buying a salon check the documentation exist for the staff you will inherit.
  • If you think it likely that you will appoint overseas staff in the future then look at the BIA site and consider registering so that you are able to sponsor potential employees.
  • Full time students from outside the EEA who have been allowed entry to the UK, can work for 20 hours a week in term time and full time out of term time.

The Border and Immigration Agency have recommended you request at interview one document from list 1 which include the following:

  • UK Passport.
  • Passport or National ID card issued by an EEA Country.
  • Passport with a Certificate issued by the UK Government giving the holder the right to abode in the UK.
  • A UK residence permit.
  • A registration card indicating the holder is entitled to work in the UK.


Or two documents from list 2, which includes the following:

  • A birth certificate issued in the UK.
  • A certificate of naturalisation as a British citizen.
  • A letter from the Home Office indicating the holder has indefinite leave to remain in the UK.
  • A work permit.
  • A passport showing the holder has leave to enter or remain in the UK.
  • A full list is available on the BIA web site.


David Wright Personnel

Phone - 01302 563 691

Mobile - 07930 358 067