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Risks employers face when taking on staff with UK visas

Written by Kirsten Cluer on Friday, 25 May 2018. Posted in Employment law, Legal

The recent headlines of Chelsea FC’s owner Roman Abramovich’s visa problems highlights the importance for employers to be up to date with immigration laws

Risks employers face when taking on staff with UK visas

Chelsea FC owner Roman Abramovich has made headlines recently after experiencing difficulties in renewing his UK visa, following new rules that came to effect in January requiring him to pass a tougher visa test.

So, with Brexit looming, what options are available to companies that may employ immigrants whose UK working visas are soon to expire?

Firstly, it’s important to note that it’s a criminal offence for a UK business to knowingly employ a person who requires, but lacks, immigration permission. This carries a maximum prison sentence of two years and an unlimited fine for employers who fail to comply with the law.

In practice, this is aimed at employers who deliberately flout the law in order to exploit vulnerable employees and undercut legal competitors. Those who are merely careless or negligent will generally be dealt with via a civil penalty.

When enrolling any new employee into the company, employers must check and copy specific original documentation. In fact, the UK government sets out when checks must be made, how to check visa authenticity and what documents employers need to photocopy and retain to prove they have hired staff legally.

These checks must be made before employment begins but employers should always make sure to continually check the visas of employees with time-limited immigration status. Even if the employer is unaware an employee’s visa has expired, they still face the risk of a civil penalty and criminal prosecution.

However, if it comes to light that a company has an employee who is no longer permitted to work in the UK, the employer should remain level-headed, as a knee-jerk reaction such as terminating the employee’s contract could carry greater risks.

A termination of contract to avoid any potential accusation of non-compliance on the immigration laws could expose the employer to claims of race discrimination or unfair dismissal, especially where the employee has sufficient service with the organisation.

Although, employers who take a more passive approach and suspend the employee from work or send them on gardening leave, are still at risk of a civil penalty as the employee is still technically in employment despite not being permitted to work.

Therefore, employers who find themselves in such a position must carefully consider all of the facts and options available to proceed in a law-abiding manner.

A revoked visa, for example, will require an almost immediate response and may relate to a conduct issue. On the other hand, an expiring visa may have a longer lead time to address, during which the employer could support the employee in applying for alternative immigration routes under which they can retain the employee.

In this instance, the employee should demonstrate that they have submitted an application to extend further leave to remain with the Home Office prior to the expiry date and that this is in active consideration. This can be verified using the Home Office Employer Checking Service.

Overstayers may be able to invoke the 28-day grace period, allowing them time to address their situation with the Home Office and providing the employer with more time to investigate their options.

Even if an employee with a working visa complies with the law, if the employer loses their sponsor licence, the employee’s respective certificates of sponsorship will be cancelled and their visas limited to 60 days or however long remains on the visas where less than 60 days. The employee would then have to leave their job and the UK unless they make a new visa application within that time.

Likewise, if an individual is subject to a TUPE - regulations that preserve employees' terms and conditions when a business or undertaking is transferred to a new employer - visas will be limited to 60 days or less if the new employer does not renew their licence within 28 days.

The most effective strategy for UK businesses to manage the risk of right to work compliance is through robust procedures implemented consistently across the organisation, to prevent illegal working arising in the first place.

Remember that a systematic approach to checking documents should cover all new employees. Moreover, make sure to schedule further checks every 12 months for those with time-limited permission.

Overall, a formal right to work process will help minimise the risk of illegal employment and should enable the employer to rely on the ‘statutory excuse’ as a defence, in the event of unintentionally employing someone unlawfully, even where the status changes during the course of employment.

With the laws on acquiring and reapplying for UK visas becoming stricter, as seen with the Roman Abramovich case, companies must ensure proper record-keeping and monitoring processes are in place to identify when immigration permissions will expire. In doing so, businesses can avoid facing criminal prosecution and prevent employees with expired visas from continuing to work in the UK despite not being permitted to.

About the Author

Kirsten Cluer

By Kirsten Cluer, is an HR consultant and owner of Cluer HR. She has more than 15 years of experience in the field and has a fellow membership with the CIPD.

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