Migrant Workers - Employing Foreign Nationals
The Asylum and Immigration Act 1996 makes it a criminal offence to employ a person who is not legally entitled to live or work in the United Kingdom. There are four categories of foreign national workers:
- Those who are nationals of member states within the European Economic Area who are free to live and work in any other member state within the EEA, citizens of Austria, Belgium, Bulgaria; Cyprus, Denmark, Finland, France, Germany, Greece, Iceland, Ireland, Italy, Liechtenstein, Luxembourg, Malta, Netherlands, Norway, Portugal, Romania; Spain, Sweden and Switzerland.
- Those who are nationals of member states which are referred to as Accession States (commonly referred to as the A8), i.e. Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Slovakia, Slovenia who are now entitled to work in Northern Ireland.
- Those who are nationals of countries outside the EEA and who are required to have a Permit to work in the UK.
NB. The Immigration Asylum and Nationality Act 2006 requires an employer to confirm a potential employee's right to work in the United Kingdom. This has changed some of the applications above.
Further guidance on this subject is available from the Border and Immigration division of the Home Office at http://www.bia.homeoffice.gov.uk/ or the Employers Helpline on 0845 010 6677. Practical guidance to assist employer determine whether they are employing migrant workers legally is available at www.nibusinessinfo.co.uk. In addition, the Labour Relations Agency provides a seminar on the ‘Employment Rights of Migrant Workers’ which is aimed specifically at employers and can be booked on-line here.
While employers have a responsibility to ensure that they check the eligibility of individuals for working in the UK to avoid illegal working, it is also important that employers do not discriminate in this process, e.g. if an employer only asks applicants who they feel appear to be foreign nationals to provide evidence of their eligibility to work in the UK he could face claims of racial discrimination – i.e. treating persons less favourably because of their nationality/race.
The Home Office has published literature to assist employers with recent changes to the UK immigration system. A further guide, An employer's guide to acceptable right to work documents, has been produced. The guide explains document checks which employers should conduct in order to establish whether an individual can legally carry out the work being offered and it provides examples of accepted documents for proving the right to work.
The Home Office has also produced a Right to Work Checklist and a Statutory Excuse Checksheet to assist employers with the recruitment process, along with a list of frequently asked questions about the illegal working civil penalty scheme.