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What is KnowHow?
Detailed Practice Notes written by our Professional Support Lawyers, guiding you through the key issues in each topic.
Immigration - overview
Migrant workers employed legally in the UK generally have the same rights, such as to be paid the national minimum wage and to be protected from discrimination, as workers who were born in the UK. This topic looks at how workers may obtain the right to work legally in the UK.
The main statute in this area is the Immigration Act 1971, which provides for the content of the Immigration Rules and for them to be subject to parliamentary scrutiny. The Immigration Rules are made by the Secretary of State for the Home Office and set out detailed requirements regarding people coming to the UK for employment. They are supplemented by policy guidance for immigration officers on how the rules should be interpreted.
The UK Border Agency is the executive agency of the Home Office which has responsibility for controlling migration to the UK.
The right to work in the UK - settled status and British citizenship
British citizenship and/or 'settled status' (which mean the same thing as 'indefinite leave to remain' and 'permanent residence') confer an unconditional right to work in the UK.
There are four methods of obtaining British citizenship:
birth or adoption
There is a wide variety of categories of person who can qualify to apply for settled status. Family members may join a person with settled status, and can apply for British citizenship after 12 months.
For further information, see The right to work in the UK - settled status and British citizenship.
EEA nationals - rights
Subject to some restrictions which apply to nationals of the newer member states, all citizens of the European Economic Area and Switzerland have the right to free movement within the EEA, including the UK, and may work for employers, in self-employment, or establish a business.
Any spouse or other qualifying family member will have virtually the same rights to enter, reside in and remain in the UK as the relevant EEA national.
For further information, see EEA nationals - rights.
EEA nationals - restrictions
A Worker Registration Scheme applied until 30 April 2011 for nationals of the eight countries which joined the EEA on 1 May 2004 (the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, the Slovak Republic and Slovenia). The Scheme ended on 30 April 2011 and therefore with effect from 1 May 2011 nationals of those eight countries coming to the UK to work are therefore no longer required to register and are free to live and work in the UK on the same basis as nationals from any other EU state (except Bulgaria and Romania).
Nationals of Bulgaria and Romania, which joined the EEA on 1 January 2007, are subject to regulations which restrict the employment of low-skilled workers from those countries to existing quota schemes in the agricultural and food processing sectors. Skilled workers from Bulgaria and Romania continue to be able to work in the UK under the highly skilled migrant programme, or if they qualify for a work permit.
For further information, see EEA nationals - restrictions.
Non-EEA nationals - permission to enter and work in the UK
Except for Swiss nationals and Commonwealth citizens with a right of abode, nationals of countries that do not belong to the European Economic Area generally do not have any right to enter the UK.
Permission to enter and work in the UK can be obtained:
as a business visitor (but the right to work is very limited and does not include taking employment)
through the points-based system (see Non-EEA nationals - points-based system), or
by one of the few routes which remain outside of that system
For further information, see Non-EEA nationals - permission to enter and work in the UK.
Non-EEA nationals - points-based system
Since 1 April 2008, the Government has gradually replaced most previous methods by which individuals could come to work in the UK with a points-based system, which has five tiers:
tier 1: highly skilled individuals, entrepreneurs, investors, the most able international graduates and exceptionally talented individuals
tier 2: skilled workers with a job offer which meets certain requirements eg salary level, shortage occupation or resident labour market test
tier 3: workers in specific schemes to fill low-skill shortages
tier 4: students
tier 5: other temporary categories eg youth mobility/cultural exchanges
The tier most relevant to employers is tier 2, which has four categories:
Minister of religion
Employers first have to be licensed as a sponsor by the UK Border Agency. Once an employer has been licensed, it is entitled to issue certificates of sponsorship to individual migrant workers but before issuing a certificate of sponsorship in the General category, employers must check to see whether the role is 'restricted' or 'unrestricted'. Only certain specified roles are 'unrestricted'. Licensed employers are given an annual allocation of sponsorship certificates for unrestricted roles by the UK Border Agency. If the role is ‘restricted’ then it is subject to an annual limit and the employer first has to apply to the UK Border Agency for a restricted certificate of sponsorship.
For further information, see Non-EEA nationals - points-based system.
Illegal workers - civil and criminal offences
A person is an illegal worker if:
he has not been granted leave to enter or remain in the UK, or
his leave to enter or remain is not valid and subsisting, or
his leave to enter or remain is subject to a condition precluding him from taking up employment
Employers who negligently hire illegal workers face a maximum fine of £10,000 for each illegal worker found at a business. There is a statutory defence available if the employer can prove that:
relevant documents were produced
copies were kept
required checks were made as to whether the documents were genuine
A Code of Practice describes how the penalty levels are set, and how employers may establish the statutory excuse.
Employers who are found to have hired illegal workers knowingly are subject to an unlimited fine and/or imprisonment.
For further information, see Illegal workers - civil and criminal offences.
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