UK Immigration & Right to Work Overview

Right to work guidance Mar 2019 – Branded Article

UK immigration system

Generally speaking, the UK immigration system excludes everyone, unless a person is:

  • not subject to immigration control, which includes:
    • British citizens
    • Individuals with right of abode
    • EU nationals and their families, who can rely on EU regulations (for the time being)
  • granted permission to enter or remain in the UK

As a result, if a person wants to work in the UK, they must fall under one of the above listed categories – see below for some more detail regarding each category.

Liability for employing illegally

Liabilities for employing illegally are extensive, such as (non-exhaustive list):

  • a civil penalty of up to £20,000 per illegal worker
  • in serious cases, a criminal conviction (sentence of up to 5 years) and a fine
  • closure of business and court compliance order

The Home Office issued An Employer’s guide to work checks, provides the following guidance regarding the liability and who should refer to the guidance even if they do not consider themselves an employer:

“This guide applies to employers who employ staff under a contract of employment, service or apprenticeship, whether expressed or implied and whether oral or in writing. […] You will not establish a statutory excuse if the check is performed by a third party, such as a recruitment agency or your professional advisor, if you are the employer.

Even if you are not the direct employer of the workers involved in your business, there are compelling reasons why you should seek to know that your workers have a right to work. If illegal workers are removed from your business, it may disrupt your operations and result in reputational damage. […] Accordingly, you may wish to check that your contractors conduct the correct right to work checks on people they employ. You may also wish to use this guidance when you use workers who are self- employed…”

Here is some more detail regarding each category listed above…

British citizens and those with right to abode

Having right of abode means that a person is entitled to live or work in the UK without any immigration restrictions. All British citizens and some Commonwealth citizens have right of abode in the UK. Historically, the status has been introduced to limit the rights of residents in the colonies to reside in the UK. As a result, a person could be a citizen of the Empire but not have the right to abode in the UK. The status can be evidenced by a UK passport confirming the person is a British citizen or British subject with right of abode. Alternatively, an eligible person can apply for a certificate of entitlement.

EU nationals

As most may be aware, the position of EU nationals in the UK is likely to change in the foreseeable future. So far, EU nationals have been free to reside in the UK, as long as they were exercising Treaty Rights (e.g. working or studying). The detail of the post-Brexit immigration system is yet to be agreed, but it is likely that EU nationals will be required to apply for immigration permission in the same way as other nationalities. Further, it is likely that there will be transitional provisions in place and those who enter the UK before the Brexit date will be treated differently to those who would enter after the transitional period is over. Consequently, different right to work provisions may apply.

Permission to enter or remain in the UK

There are many different immigration categories in the UK and different working rights apply to each of them. As a result, any immigration permission needs to be scrutinised carefully to assess whether a person has a right to work and, if so, what are the restrictions.

The below summary is aimed as an overview only, as a full review of the candidate’s permission should be carried out in each case as conditions attached can vary from one permission to another.

Lastly, one must always remember that immigration laws change frequently, therefore staying up to date is of crucial importance.

Points Based System

The main route into the UK is Points Based System (PBS), which caters for main applicants and their dependants. Each category is aimed at different type of applicants (e.g. investors, workers or students).

There are following sub-categories, called tiers:

  • Tier 1 – high value individuals or investors
  • Tier 2 – skilled workers
  • Tier 3 – low skilled – never introduced
  • Tier 4 – students
  • Tier 5 – temporary or exchange workers

Tier 1 has following subcategories:

  • Exceptional Talent – normally allows to work for any employer and switch jobs; available to those working in a ‘qualifying field’ (e.g. science, engineering) and endorsed as exceptional talent or exceptional promise
  • Investor – normally allows to work; available to high value investors
  • Graduate Entrepreneur* – available to graduates who have been endorsed (by the Department for International Trade or authorised UK higher education institution) as having a genuine and credible business idea
  • Entrepreneur* – only allowed to work for their own business, any activity undertaken pursuant to a contract of service, whether express or implied and whether oral or written, is specifically prohibited

* These categories are soon being replaced by Start-up and Innovator categories for new entrants

Tier 2 has following subcategories:

  • General – allows working for the sponsor only; the sponsor can ‘contract out’ the individual but the rules on this are very strict, so the arrangement should be managed carefully. First and foremost, the sponsor must retain the full responsibility and direction for all migrant’s duties, functions and outcomes.
  • Intra-company transfer – for existing employees of an overseas company being moved to the UK branch; does not allow changing employers
  • Sportsperson – for high level elite sportspersons or qualified coaches
  • Ministers of Religion – to fill jobs within a faith community

Tier 4 has following subcategories:

  • Child student visa – for children 4 to 17 years old – in most cases not allowed to work
  • General – for adult students; working rights vary depending on the course undertaken, so the permission needs to be scrutinised carefully to assess the right to work, together with reviewing details of the course. In most cases, students are either not allowed to work or allowed to work between 10 to 20 hours. Those individuals who study full time degree course at RQF level 6 or above with a registered sponsor are normally allowed to work 20 hours a week during term time and full time during vacations, but one must always check conditions on the permission itself.

Tier 5 has following subcategories:

  • Youth mobility: for 18-30 years old individuals from certain countries such as Australia, NZ, Canada; normally allows to be employed, but there are restrictions on self-employment
  • Temporary Worker:
    • Creative and sporting – for sports or creative persons
    • Charity worker – for unpaid voluntary work
    • Religious worker – for those who want to preach or work in a religious order
    • Government authorised exchange – for those who want to complete short term work experience in the UK, training, research etc.; there are various sponsors that can sponsor or place a candidate with a UK company (e.g. AIESEC internships, Foreign & Commonwealth Office, etc.)
    • International agreement – for those who will carry out work covered by international law e.g. working for a foreign government

Non-Points Based System routes

As mentioned, PBS is the main route into the UK, but there are a few other categories that fall outside, such as (non-exhaustive list):

  • Spouses and unmarried partners – as the name suggests, family route normally giving working rights
  • Indefinite Leave to Remain – not technically a visa, it means that the person is outside of the immigration control; can be obtained in various ways, but can also be lost (e.g. if a person leaves the UK for more than 2 years)
  • Ancestry visa – fairly straightforward application available to Commonwealth citizens with a grandparent born in the UK which gives a right to work
  • Representative of an Overseas Business visa – as the name suggests, for sole representatives of an overseas company planning to set up a UK branch – only allows to work for the employer
  • Turkish ECAA business person – for Turkish nationals coming to the UK to start a new business or help to run an existing business; only allows to work for the business set up or run
  • Visitors – are not normally allowed to work. The activities visitors can and cannot carry out are expressly defined by the Immigration Rules

Conclusion

As can be seen from the above, the UK immigration system provides for a wide range of immigration categories; some giving wide range of rights to work, some very limited and some none. The liabilities for employing illegally (whether knowingly or not) are very high, so it is advisable to always check a candidate’s right to work carefully and seek professional advice if in doubt.

If more in depth advice is required, please contact the author of this article, Monika Jones of Blake Morgan LLP on monika.jones@blakemorgan.co.uk or Lisa Parsons on lisa.parsons@blakemorgan.co.uk who would be happy to be instructed to provide further guidance.

Right to work guidance Mar 2019 – Branded Article

UK Immigration and right to work overview: correct as of 12 March 2019
Monika Jones CHARTERED LEGAL EXECUTIVE E: monika.jones@blakemorgan.co.uk T: 020 7814 5461
Lisa Parsons SENIOR ASSOCIATE E: lisa.parsons@blakemorgan.co.uk T: 020 7814 5495