RIGHT TO WORK GUIDELINES

Transcription

1 RIGHT TO WORK GUIDELINES This document provides guidance on carrying out the prevention of illegal working checks. It is extremely important that these are carried out correctly to avoid penalties for both managers as individuals and for EUSA. These checks need to be carried out and documents kept for EVERY new employee regardless if they are from the UK or not. The penalties for employing illegal workers from May 2014 are up to 20,000 per illegal worker. In addition if you knowingly employ or have knowingly employed an illegal migrant worker from 29 February 2008 you as a Manager could be prosecuted and receive an unlimited fine and or a maximum two year prison sentence. It is therefore your responsibility to ensure that the correct checks have been carried out for all new employees before their employment commences. You must carry out checks for ALL prospective employees, including those from the UK. British and EEA citizens British citizens and nationals of most countries in the European Economic Area (EEA) and Switzerland do not need permission to live and work in the UK, and can be employed without restriction. Please remember, however, that even if a potential candidate claims or appears to be a particular nationality, you still have to check their right to work. Nationals of the following countries can be employed without restrictions: Austria Belgium Bulgaria Cyprus Czech Republic Denmark Estonia Finland France Germany Greece Hungary Iceland Ireland Italy Latvia Liechtenstein Lithuania Luxembourg Malta Netherlands Norway Poland Portugal Romania Slovakia Slovenia Sweden Switzerland UK

2 Employment of Croatian workers has been restricted by the UK Boarder Agency. Nationals of Croatia may be eligible to work in the UK provided that they have obtained permission from the UKBA (a worker authorisation registration certificate (or purple/blue/yellow registration certificate ). Since this is quite a complex area, it is essential that you do not offer employment to a Croatian applicant without checking the current legal advice with the HR Department. It is important that these regulations do not deter you from interviewing and hiring the best applicant and that these applicants receive equal employment opportunities. However, we would like to highlight the importance of the checks to protect both yourself and the organisation from the significant penalties for hiring illegal workers. International Workers When employing international workers visas must be checked to ensure that they are eligible to work in the UK. Most nationals of countries outside Europe must apply to the UKBA under the pointsbased system for UK immigration if they want to live and work here. The new system is very complex and each of the tiers have different conditions, entitlements and entry clearance checks and points are awarded to reflect the migrants ability, experience, age and, when appropriate, the level of need within the sector the migrant will be working. The different tiers cover: Tier 1 - for Persons of Exceptional Talent, Investors, Entrepreneurs, Post Study Work (now closed to new applicants) and Highly Skilled Workers (now closed to new applicants); Tier 2 - for skilled workers with a job offer; Tier 3 - for low-skilled workers filling specific temporary labour shortages. This tier is currently suspended; Tier 4 - for students; Tier 5 - for temporary workers and participants in the Youth mobility scheme; Migrants under Tiers 1 and 4 do not require to be sponsored by the employer, and can be employed without restriction until their permission to stay in the UK expires. Under Tier 4, students can work for a maximum of 20 hours per week during term time if their course leads to an approved qualification at degree level (NQF 6/SCQF 9 or above), and a maximum of 10 hours per week during term time if they study below a degree level. All students under Tier 4 can work full time during the official university vacation periods (note that Postgraduates do not follow the same term structure as undergraduates so they will have different official vacation periods during the summer vacation to undergraduates). These students must not fill a permanent, full-time vacancy. Migrants under Tier 5 - Youth Mobility Scheme are sponsored by their government and therefore can be employed until their permission to stay expires. The countries in the scheme are Australia, Canada, Japan, New Zealand and Monaco. British overseas citizens, British overseas territories citizens and British nationals (overseas) can also apply under the scheme, and do not need a sponsor. If you want to employ skilled workers under Tier 2 or temporary workers under Tier 5 of the points-based system, EUSA is required to register as a sponsor with the UK Border

3 Agency before a job offer is made. Please contact the HR Department if you need any more information on becoming a sponsor. There are several categories of international workers that are outside the points-based system. These include migrants given indefinite leave to remain, spouses of UK and EA nationals or holders of UK ancestry visas. Please note the complexity of this system highlights the need for significant checks to be carried out prior to hiring overseas workers, so please contact the HR Department every time you want to hire an international worker. Please remember that all job applicants need to be treated in the same way, no candidate should be excluded or discouraged due to their appearance or accent and no assumptions should be made about the applicant s right to work in the UK or their immigration status on the basis of his or her colour, race, nationality or ethnic or national origins, or on the length of time the person has been in the UK. Under the Equality Act 2010, it is unlawful to refuse employment to a job applicant on the grounds of nationality. Rejection for employment on racial grounds is unlawful at any stage of the recruitment process. Document Checks Under the Immigration, Asylum and Nationality Act 2006, to establish that an individual has the right to work in the UK, an employer must check and copy one of a number of specified documents (or two documents in a specified combination) from list A or list B, published by the UK Boarder Agency (see appendix 1). The documents in list A indicate that the holder is entitled to live and work in the UK indefinitely. The documents in list B indicate that the holder has a limited right to live and work in the UK and repeat document checks need to be carried out. You should ask the candidates for the original documents when they come to an interview. Before photocopying the documents, you have to satisfy yourself that the documents are valid and genuine and have not been tampered with; check that any photographs and birth dates on the documents match the applicant's appearance and check information in the job application or on your candidate list against the documents to ensure the details match up. If the name on the document differs from the name on your candidate list, you need to clarify the discrepancy. If the candidate has changed name, you need to see and photocopy an original document confirming this (e.g. marriage or change of name certificate). You are not expected to be an expert on forged documents. All you need to do is conduct simple - but careful - visual checks, to satisfy yourself that the document(s) presented are genuine, and relate to the person presenting them. Please refer to the Right to Work Checklist when verifying the documentation (see appendix 2). Please ensure you sign and date the photocopied documents prior to submitting them to HR. With passports and travel documents, you must copy the front cover, pages containing any photographs and signature, the expiry date, the candidate s personal details including nationality, and any pages containing a UK government stamp or endorsement which allows the applicant to do the work you are offering. Due to the introduction of ID cards for some categories of international migrants (including students), some candidates may not have a visa inserted into their passport, but instead they may be issued with a card that contains their visa information. In these cases you will have to ask

4 to see both the passport and the ID card to verify their personal information and their eligibility to work. For students on Tier 4 visas, please also take a copy of their student id card (please check the name, photograph, expiry date, and make sure matriculation number is visible on the photocopy) we need a confirmation of the place of study to ensure we can obtain the relevant semester and vacation dates. In terms of a worker authorisation registration certificate for new members of the EU like Croatia, you must make the both-sided copy of the document in colour and insert the date on the copy as well as your signature. You should copy other documents in their entirety. Due to the range and complexity of visa stamps if you are unclear on whether the Visa entitles the individual to work in the UK please contact the HR Department. Please ensure you have a copy of the Visa to hand when making this enquiry.

5 Appendix 1 Document Checks Before an employee starts work it is obligatory that he/she can prove entitlement to work in the UK. Before any individual starts work for the Company, the Company must check that he/she has the document(s) in List A or List B below. List A Acceptable documents to establish a continuous statutory excuse List A 1. A passport showing the holder, or a person named in the passport as the child of the holder, is a British citizen or a citizen of the UK and Colonies having the right of abode in the UK. 2. A passport or national identity card showing the holder, or a person named in the passport as the child of the holder, is a national of a European Economic Area country or Switzerland. 3. A Registration Certificate or Document Certifying Permanent Residence issued by the Home Office to a national of a European Economic Area country or Switzerland. 4. A Permanent Residence Card issued by the Home Office to the family member of a national of a European Economic Area country or Switzerland. 5. A current Biometric Immigration Document (Biometric Residence Permit) issued by the Home Office to the holder indicating that the person named is allowed to stay indefinitely in the UK, or has no time limit on their stay in the UK. 6. A current passport endorsed to show that the holder is exempt from immigration control, is allowed to stay indefinitely in the UK, has the right of abode in the UK, or has no time limit on their stay in the UK. 7. A current Immigration Status Document issued by the Home Office to the holder with an endorsement indicating that the named person is allowed to stay indefinitely in the UK, or has no time limit on their stay in the UK, together with an official document giving the person s permanent National Insurance number and their name issued by a Government agency or a previous employer. 8. A full birth or adoption certificate issued in the UK which includes the name(s) of at least one of the holder s parents or adoptive parents, together with an official document giving the person s permanent National Insurance number and their name issued by a Government agency or a previous employer. 9. A birth or adoption certificate issued in the Channel Islands, the Isle of Man or Ireland, together with an official document giving the person s permanent National Insurance number and their name issued by a Government agency or a previous employer. 10. A certificate of registration or naturalisation as a British citizen, together with an official document giving the person s permanent National Insurance number and their name issued by a Government agency or a previous employer.

6 List B Acceptable documents to establish a statutory excuse for a limited period of time List B Group 1 Documents where a time-limited statutory excuse lasts until the expiry date of leave 1. A current passport endorsed to show that the holder is allowed to stay in the UK and is currently allowed to do the type of work in question. 2. A current Biometric Immigration Document (Biometric Residence Permit) issued by the Home Office to the holder which indicates that the named person can currently stay in the UK and is allowed to do the work in question. 3. A current Residence Card (including an Accession Residence Card or a Derivative Residence Card) issued by the Home Office to a non-european Economic Area national who is a family member of a national of a European Economic Area country or Switzerland or who has a derivative right of residence. 4. A current Immigration Status Document containing a photograph issued by the Home Office to the holder with a valid endorsement indicating that the named person may stay in the UK, and is allowed to do the type of work in question, together with an official document giving the person s permanent National Insurance number and their name issued by a Government agency or a previous employer. Group 2 Documents where a time-limited statutory excuse lasts for 6 months 1. A Certificate of Application issued by the Home Office under regulation 17(3) or 18A(2) of the Immigration (European Economic Area) Regulations 2006 to a family member of a national of a European Economic Area country or Switzerland stating that the holder is permitted to take employment which is less than 6 months old together with a Positive Verification Notice2 from the Home Office Employer Checking Service. 2. An Application Registration Card issued by the Home Office stating that the holder is permitted to take the employment in question, together with a Positive Verification Notice from the Home Office Employer Checking Service. 3. A Positive Verification Notice issued by the Home Office Employer Checking Service to the employer or prospective employer which indicates that the named person may stay in the UK and is permitted to do the work in question.

7 Appendix 2 Right to Work Checklist You must carry out checks for ALL prospective employees, including those from the UK, to ensure proof of eligibility to work in the UK. Please use this checklist to ensure the documents checks are accurate, sign and date the photocopied documents and pass them to HR PRIOR TO the employee s first day of employment. For a full list of acceptable documents, please see Appendix 1. Action Complete N/A Check that the name on the document matches the name on your candidate list* Check that the photograph and date of birth is consistent with the individual s appearance Check the expiry dates of the document Check the expiry dates of any leave for the individual to enter or remain in the UK and any government endorsements in the passport, such as visas For passports: Check that the plastic seal around the photo doesn t appear to have been tampered with Photocopy the front cover Photocopy the pages containing the photograph employee personal details, including nationality signature UK government stamp or endorsement which allows the candidate to work for EUSA For students on Tier 4 visas, photocopy their Student ID card (please check name, photograph, matriculation number and expiry date) For EEA national ID cards photocopy both sides of the card For other documents photocopy them in their entirety Sign and date the photocopied documents and pass them to HR prior to the employee s first day of employment *If the name on the document differs from the name on your candidate list, you need to clarify the discrepancy. If the candidate has changed name, you need to see an original document confirming this (e.g. marriage or change of name certificate)