Guide to Working in the UK

Foreign nationals from the EEA countries (together with Switzerland) are generally free to work in the UK without a visa or work permit. Following the expansion of the EU, however, nationals from the A8 accession states (the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Slovakia and Slovenia) are required to register with the UK Border Agency (‘UKBA’) within one month of working in the UK. Nationals from the A2 accession states (Bulgaria and Romania) need work permits to work in the UK.

Points Based System

For all other nationals, a 5-tier system is in place: Tier 1 - highly skilled migrants, Tier 2 - skilled workers, Tier 3 - low-skilled workers (suspended indefinitely), Tier 4 - students, Tier 5 - youth mobility scheme and temporary workers (including creative and sporting people).

Tier 1: Under Tier 1, highly skilled individuals may be eligible to live and work in the UK by making their own application as a ‘highly skilled worker’. They must satisfy a points-based test. The majority of the points are based on past earnings, and they must also have at least a bachelor’s degree and be able to show that they can speak English and support themselves. Tier 1 individuals are free to work in any job and for any employer.

Tier 2: Foreign nationals (who do not qualify under Tier 1) will require a Sponsor before they can come to the UK to work. The Sponsor will be an organisation that wishes to employ the individual. If a UK organisation would like to employ a foreign national, and therefore act as a Sponsor, the organisation must first obtain a Sponsor Licence from UKBA.

To obtain the Sponsor Licence, the employer will need to satisfy UKBA that:

• It is a genuine UK-based employer;
  
• It is able to comply with employment and immigration law and good practice; and
• It agrees to take on a number of ongoing obligations, such as monitoring and reporting duties. Breach of any such duties could result in the Sponsor Licence being withdrawn, and the employer would then no longer be able to employ any foreign nationals. Any current foreign employees of the employer would need to be dismissed, and they would probably need to leave the UK.
  

Once the Sponsor Licence is in place, the Sponsor Licence gives the employing organisation authority to issue Certificates of Sponsorship to foreign nationals, provided that a number of conditions are met. The Sponsor can only issue a Certificate of Sponsorship to an individual, if:

• The job is at the prescribed skill level (S/NVQ3 level or above);
  
• It has been unable to find a suitably qualified ‘resident worker’ after complying with the resident labour market test, or the job is on the shortage occupation list; and
  
• The individual will be paid a salary at or above the appropriate rate for the job in question.
  

The resident labour market test means that the organisation is under an obligation to find a ‘resident worker’ (UK or EEA national) to fill the vacancy, by complying with prescribed recruitment methods.

If a Sponsor issues a Certificate of Sponsorship to a foreign national it provides evidence that the individual will fill a genuine vacancy in the UK that cannot be filled with a suitably qualified or skilled ‘resident worker’.Issuing of the Certificate of Sponsorship also involves a pledge from the Sponsor that it will accept the duties of sponsoring the migrant.

Once the Certificate of Sponsorship has been issued, the individual can then apply for entry clearance (a visa), or leave to remain in the UK, on the strength of this Certificate of Sponsorship. However, he will only obtain such permission if he satisfies the points based test for Tier 2.

Even if the individual has enough points, and a Certificate of Sponsorship, he may be denied entry to the UK for other reasons, such as previous breaches of the UK immigration rules.

The Certificate of Sponsorship restricts the individual’s right to work, in that he is only entitled to work for the Sponsor in the post for which the Certificate of Sponsorship was issued. Tier 1 therefore gives the individual more freedom than Tier 2.

Employing illegal workers

UK employers are advised to check all prospective employees’ entitlement to work in the UK, or they risk breaking the law.

If employers are found to be using illegal migrant workers, they can be fined up to £10,000 per illegal worker.

There are also potential criminal sanctions if employers are found to knowingly or deliberately employ illegal migrant workers. The officer responsible could be sent to prison for two two years, and the fines in these circumstances are unlimited.

Ashfords LLP is regulated by the Solicitors Regulation Authority.  The information in this note is intended to be general information about English law only and not comprehensive.  It is not to be relied on as legal advice nor as an alternative to taking professional advice relating to specific circumstances.