EU workers in the UK – What next?

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Following the Referendum result the spotlight has fallen firmly on the future UK employment of EU workers. Whilst the future is uncertain, EU workers are free to continue working for the time being and for at least another 2 years. They can also, for now, continue to come to the UK to look for jobs. Recruitment checks on these workers remain the same and we’ll explain here what you need to do.

Discrimination risk

Firstly, it is important to address any potential reluctance on the part of UK employers to recruit new EU workers due to the current uncertainty over their ability to remain in employment after the exit. This caution is understandable. However, it must be pointed out that refusal to employ someone because of their country of origin is unlawful.

Recruitment checks

Checking eligibility to work in the UK is something that you must do for ALL job applicants – not just those who you perceive to be from outside the UK. UK Visas and Immigration maintains two lists of documents that the worker must provide that can be taken as acceptable evidence that they are allowed to work in the UK. The lists are called List A (which contains types of documents which show an unlimited right to work in the UK) and List B (documents which show a limited right to remain and so further checks are needed once validity expires). Documents include a passport, a Biometric Immigration Document, a Permanent Residence Card plus many others.

How to conduct a right to work check

  • Obtain the person’s original documents;
  • Check them in the presence of the holder. Check for consistency between photographs; that the document has not been tampered with and that reasons for any different names are provided;
  • Make and retain a clear copy and note the date of the check. Copy both sides of a document. With a passport, copy the main page showing the person’s details and also pages showing the holder is entitled to enter or remain in the UK and do the work in question.

Non EU workers

In addition, workers from outside the EU must use the Points Based System to enter the UK meaning that they are scored against various criteria before they are given permission to work e.g. ability to support themselves financially. Employers must obtain a sponsorship licence and any comply with sponsorship requirements.

New criminal offence

It is illegal to employ someone who is not allowed to work in the UK. The new Immigration Act 2016 creates a new criminal offence of employing an illegal worker when you have reasonable cause to believe that they are illegal. This means that proof that the employer knew the worker was illegal is no longer needed. Following the steps above provides you with the statutory excuse against prosecution but will not apply if the documents are false or have been tampered with.

Enforcement

The main route of enforcement for employing an illegal worker is a fine of up to £20,000 per worker. However, imprisonment for up to 5 years is also possible.

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