A Guide to Criminal Record Checks and Sponsoring Employees on Skilled Worker Visas
In the haste to fill job vacancies with skilled migrant workers on the skilled worker visa it can be easy for sponsoring employers to omit the required criminal record checks. In this blog we give guidance for sponsoring employees on skilled worker visas and the need for the criminal record check to best ensure a successful visa application.
UK London based immigration solicitors
For specialist advice on sponsoring skilled migrant workers on the skilled worker visa call the immigration law team at OTS Solicitors on 0203 959 9123 or contact us online. Appointments are available by phone or video call.
Do all skilled worker visa applicants require criminal record checks?
Not all skilled migrant workers applying to work in the UK through sponsorship on a skilled worker visa require a clean bill of health through the completion of criminal record checks. If all overseas workers needed such checks completing by their sponsoring employer, then it would take considerably longer to complete the sponsorship and recruitment process.
There are obvious cases where a criminal record check will be required of a job applicant. For example, a job in health care or in the education sector. However, there are many jobs when it isn’t so obvious that an employee will be coming into contact with the elderly, the young or the vulnerable people and where a criminal record check will be required.
When it comes to skilled migrant workers applying to work in the UK, the Home Office guidance specifies which jobs with occupation codes require the carrying out of a criminal record check.
What happens if a criminal record check isn’t carried out?
If a required criminal record check isn’t carried out then the successful job applicant should have their application for a skilled worker visa refused by the Home Office. That will then add to the time and cost of securing the skilled worker visa for your new recruit.
If a criminal record check isn’t carried out then in the unlikely event that the Home Office missed the fact that a crucial piece of paper was missing from the skilled worker visa application, the lack of criminal record check could still create future problems for the business, such as:
- Problems at a future Home Office audit of the sponsor licence.
- Employing the worker to carry out work where a mandatory criminal record check is required to give the worker the right to work in that job.
- If the skilled worker visa holder committed an offence or behaved inappropriately towards a patient, child , customer or consumer.
- If the skilled migrant worker behaved badly at work and that behaviouraffected a work colleague. That’s because a UK employer has a duty of care towards all of its employees. That duty of care applies to all employees, whatever their nationality or visa status.
Will a UK criminal record check cover an overseas worker?
In the UK, the Disclosure and Barring Service carry out criminal record checks. They can only check criminal records in the UK. If a job applicant is applying from overseas and needs a skilled worker visa, your business won't be able to secure a criminal record check from the DBS for any relevant overseas countries.
How do overseas criminal record checks work?
If you are sponsoring the employment of a skilled migrant worker who needs a criminal record check as part of their skilled worker visa application then clearly a UK check won't be much help if the job applicant has been living overseas.
The immigration rules say that the criminal record check certificate must be obtained from the relevant authority in any country in which the applicant for a skilled worker visa has lived for at least twelve months during a ten-year period prior to the date of visa application.
The twelve-month period is either on a continual basis or for a total period of twelve months during the ten-year period. This is designed to catch out those who move to a different country after committing offences and then apply for a UK work visa.
Who can obtain a criminal record check for a skilled worker visa applicant?
A criminal record check can either be obtained by the job applicant or the sponsoring employer. The crucial points are that:
- The criminal record check must be obtained from the relevant authority in the country that the criminal record check is obtained from.
- If the criminal record check is not in English then an official certified transcription will need to be supplied with the skilled worker visa application.
- The criminal record check must cover all relevant countries. That means if the job applicant has travelled for pleasure or work more than one criminal record check may be required.
Immigration solicitors say that if an overseas job applicant doesn’t volunteer a criminal record check, then it is best to flag up the need for a criminal record check to be undertaken and the extent of it. That’s because not all overseas job candidates will be aware of UK visa requirements and the need for the sponsoring employer to secure the criminal record check if the successful job applicant hasn’t already done so.
If a successful job applicant authorises a prospective employer to request the criminal record check this is only possible if the relevant authority authorises third party criminal record check requests. Not all countries will allow third party requests so the onus may be on the successful job applicant to get the criminal record check if they want to secure their skilled worker visa and commence employment with your business.
How do you get an overseas criminal record check?
Frustratingly, there is no set procedure for an overseas criminal record check as the procedure varies from country to country. Some countries accept applications for criminal record checks by prospective employers (provided they have the person’s consent) whereas other countries won't do so or even require an application in person from the visa applicant rather than accepting an email request.
Just as frustratingly, there is no set timescale for the return of criminal record checks as the timescale varies from country to country. The Home Office or relevant embassy is often able to give up to date information so you know the likely turn around time for a criminal record check if either you or the successful job applicant are requesting the criminal record check. However, remember that with a well-travelled job applicant the criminal record check process may need to be made with a number of different relevant authorities.
What happens if a skilled migrant worker can't get a criminal record check?
Sometimes it just isn’t possible to get a criminal record check from a relevant authority. If that is the case, the immigration rules provide that a skilled worker visa applicant can go ahead with their visa application but they must provide an explanation of why they haven’t provided a criminal record check or why there is a missing criminal record check for a country that they spent over twelve months in during the previous ten years.
When recruiting and conducting job interviews with top candidates, the question of the ease of securing a criminal record check doesn’t feature in the recruitment decision process. If it did then job applicants from countries that are either slow or difficult in providing criminal record checks would be penalised for something that is outside their control. As your business may be reliant on a fast visa application turnaround it is worth ensuring that conditional job offers include the requirement for a criminal record check.
UK London based immigration solicitors
For specialist advice on sponsoring employees on skilled worker visas or sponsor licence management call the immigrationlaw team at OTS Solicitors on 0203 959 9123 or contact us online. Appointments are available by phone or video call.