Between July – September 2016 alone, UKVI issued £10.2million in fines to UK employers for illegal working. For employers, the option of recruiting from the global talent market is critical to maintaining operations and importantly, competitive advantage. But the penalties for employing illegal workers and failing to comply with your immigration duties are considerable, and best avoided.
Fundamentally, your recruitment practices should enable you to find the best candidates for your needs – individuals with the right skills, experience, competencies. Where the UK labour market does not offer the solution, turning to the recruitment may be a solution. This has become common practice in sectors such as health and social care, tech, hospitality, leisure, agriculture, construction, where domestic labour shortages are leaving employers with little choice than to look overseas to meet talent needs. There are however a number of risks employers should be aware of when recruiting non-UK workers.
At every stage of the recruitment process, you are potentially facing immigration compliance issue.
1. Job adverts – the Resident Labour Market Test
Tier 2 sponsor licence holders have an active role in ensuring compliance with their immigration duties. Keeping up to date with sponsor licence duties is an area of significant business risk. Failure to comply with duties can result in licence downgrading or revocation, along with substantial fines and even imprisonment. A significant area of risk for sponsors is use of the Resident Labour Market Test (RLMT). The purpose of the RLMT is to protect the domestic workforce by confirming the post being filled is genuine. The government requires that UK employers have tested the market to ensure the position they would like to fill with an overseas worker cannot be filled locally. They also have to confirm the position is skilled and meets the requirements to warrant a visa being issued for an individual to come to the UK to carry out the role. Sponsors who are required to carry out the test must advertise the position they wish to fill in two places listed in the guidance issued by UK Visa and Immigration:
• National newspaper – must be published at least once a week and marketed throughout the UK
• Professional Journal – Published for a particular field and is available nationally
• Milkround – this is an annual recruitment programme where employers from a range of sectors visit universities to give presentations and/or interview students
• Rolling recruitment campaigns – allows companies to select skilled individuals who might fill future, unfilled vacancies rather than specific roles
• Recruitment agencies and head-hunters • Internet – websites are not restrict
The job can be advertised using one method as long as there are two adverts live, i.e. internet, posting a job on the Job Centre Plus website and on your company website (if the requirements are met) is acceptable. This exercise needs to be carried out for a total of 28 days, which you must be able to evidence. Ensure you keep a record of the posting date and closing date. We also recommend you include the opening as well as closing dates in the body of the advert.
The following information is mandatory on your advertisements:
• Job title • Location of the job • Indication of salary package • Main duties and responsibilities • Requirements • Posting / Closing dates
UK Visas and Immigration are within their rights to request a copy of the advert at any point during the application process. If the advert is not requested at this point, then it will definitely be spotted should UK Visas and Immigration decide to visit your offices and inspect files.
The main exemptions for when resident labour market test does not need to be carried out are as follows:
- High earners – where total annual salary package is £155,300 or above.
- Extension applications – for an existing employee to extend their leave in the UK to continue to do the same job.
- Shortage Occupation – where the role is included on UKVI’s shortage occupation list and the employee will be working at least 30 hours per week.
- Previous grant of leave – where the potential employee is applying for Tier 2 (General) leave in the UK and has been granted leave to enter or stay under certain headings.
This list is not exhaustive and other exemptions do apply.
2. Interviewing – discrimination
When recruiting, an employer cannot make assumptions about a person’s right to work or immigration status on the basis of their ethnicity, accent, physical appearance or the length of time they have lived in the UK. Under the Equality Act, it is unlawful to discriminate against a job applicant or employee on the basis of their race, which includes:
- nationality (including citizenship);
- ethnic origin; or
- national origin.
While Britain remains a part of Europe, the Free Movement of Labour principle still applies. This means that under the Equality Act, employers must give equal weight to applications from UK citizens and EU nationals. Arbitrary requirements such as hiring British workers only, would be discriminatory. Formal processes for shortlisting, interviewing and selecting canditates should take into accont the underlying compliance risks, and ensure personnel are trained and understand the implications of non-compliance.
3. Onboarding – right to work
The Immigration Rules are unequivocal in that an employer is not permitted to employ an individual who does not have a valid Right to Work in the UK. Failure to comply with your Right to Work duties can result in a civil penalty, sponsor licence downgrade or revocation.
Your duties as an employer are to:
- check and keep copies of original, ‘acceptable’ documents before someone starts working for you;
- carry out repeat checks at least once every 12 months if a person has a time limit on their stay; and
- not employ a person in breach of any restrictions such as type of work or the amount of hours they can work.
This process applies most apply to all employees. Singling out nationalities could be grounds for discrimination. Your on boarding process should be geared to ensure consistent and accurate compliance with your Right to Work duties. This could require use of technology to capture all documentation at the point of onboarding, and notify about the expiry of any permissions and actions to be taken.
What can HR do to manage risk and ensure organisational compliance?
HRs should ensure the ongoing accuracy and suitability of policies and processes. It is also critical to ensure line managers and those with recruitment responsibilities are trained on their responsibilities and best practice procedures, particularly in response to any changes in immigration rules, which are common.