As the best Immigration lawyers in London know, Immigration law and employment law do not always sit easily together. Indeed, for any employer in the UK, working with top employment solicitors who also have an in-depth knowledge of the Immigration rules is a must.
Whether you are employing someone from overseas specifically to fill a post under the Tier 2 visa route, or you are carrying out the right to work checks on an employee as part of your routine recruitment and onboarding processes, taking advice from an Immigration lawyer and UK employment lawyer will help you navigate the tricky landscape of UK immigration law. While Immigration rules require employers to take steps to ensure every employee has the right to work in the UK, and impose heavy penalties, both criminal and civil, on employers who are found to be breaching the rules, employment law requires that principles of equal treatment and non-discrimination are adhered to, and that employees are treated fairly.
Immigration in the workplace
In recent years, employers have been asked to take on a number of functions managing and policing the Immigration status of employees and prospective employees. An organisation wishing to recruit from outside the EU/EEA (because appropriate skills are not available within the settled workforce) must usually set up the rigorous system required under the Tier 2 visa route and maintain routine compliance on an ongoing basis. Aside from the situation where an organisation is specifically recruiting from abroad, employers must check that all employees have the right to work in the UK. Both scenarios impose significant obligations on an employing organisation, and yet failing to have appropriate systems in place can lead to serious penalties for non-compliance – criminal as well as civil.
How employment law may impact on the management of Immigration issues
UK employment law applies to pretty much every employing organisation within the UK. The nationality of the employee is irrelevant – and so, to a certain extent, is his or her Immigration status. He or she must still be accorded treatment in accordance with the UK’s employment laws. Treatment of the prospective employee during recruitment, throughout the employment relationship and on termination of the relationship must be without discrimination or harassment; dismissals must be fair and in accordance with the contract of employment.
An employer cannot continue to employ someone who does not have the correct Immigration status – to do so would break the law. However, in bringing the employment relationship to an end, or in withdrawing a job offer, the employer must be sure that he does so in accordance with UK employment law. An example of where this might come into play would be in the case of an employee issued a Tier 2 certificate of sponsorship for one role who then wishes to transfer into a different role. In that case, the employer would potentially be employing the individual illegally, but to bring the employment to an end fairly, the employer would need to follow a fair process, and make sure the dismissal was fair and reasonable in the circumstances. This might include consideration of whether a new certificate of sponsorship could be obtained.
Immigration status – key points for Recruiting Managers and HR Managers
The importance of having robust internal processes for dealing with right to work checks, and, if applicable, the issue and management of certificates of sponsorship cannot be under-estimated for any employer.
• Embed right to work checks in all recruitment and onboarding processes. The earlier the right to work checks can be carried out the better. For more guidance on how to carry out a right to work check in accordance with the Home Office’s requirements, please see our recent blog, or get in touch to discuss with one of our right to work check experts.
• Be clear in contracts of employment and other documentation, including if necessary, documentation issued prior to interview, that roles are offered subject to satisfactory completion of the right to work check. It may also be appropriate to include a provision in the disciplinary policy, or elsewhere in the staff handbook, explaining that a change in Immigration status may entitle the employer to dismiss.
• Be sure to offer a right of appeal to an employee who appears to have had a change in Immigration status such as might mean you could dismiss – in some cases, an employee may have the right to work all along, so refusing a right of appeal may render a dismissal unfair, despite the need to act swiftly if a breach of Immigration rules is suspected.
• Regularly audit systems and processes used to manage certificates of sponsorship under Tier 2 visa route and ensure that you stay up to date with the latest rules and guidance from the Home Office to stay compliant.
OTS Solicitors are Legal 500 recommended Immigration lawyers with significant employment law expertise. We regularly advise employers on compliance with Home Office rules, both in connection with Tier 2 Certificates of Sponsorship, and right to work checks. For more information and to find out how we can help your organisation ensure it meets both its Immigration and employment law responsibilities, call us on 0203 959 9123.
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Posted on: Tuesday, 30 October, 2018