Summary
- Employers must verify foreign workers have the legal right to work in the UK before employment starts, or risk a civil penalty.
- Most foreign workers must meet the points-based system’s 70-point threshold, usually needing a sponsor licence from the employer.
- Employment contracts for foreign workers should address visa conditions, payment currency and cross-border tax and social security issues.
- This guide explains the key considerations for UK employers before hiring foreign workers under the points-based immigration system.
- LegalVision’s business lawyers specialise in advising clients on UK immigration and employment compliance.
Tips for Businesses
Check right to work documents before any offer of employment. Learn the points-based system and apply for a sponsor licence if the role needs one. Set out visa conditions, currency and tax details clearly in the employment contract from day one.
Employing a foreign worker in England means checking their right to work before the job starts, since the UK operates a points-based immigration system for anyone without settled status. Most sponsored workers need 70 points, made up of a job offer from a licensed sponsor, the required skill level and English language ability, with the remainder traded through salary or qualifications. Employers who skip right to work checks risk a civil penalty of up to £45,000 per illegal worker for a first breach, or £60,000 for a repeat breach, following the fine increases that took effect in February 2024. Foreign workers retain rights under their home country’s laws alongside UK employment law. This article will explain:
- who qualifies as a foreign worker;
- the importance of checking if a person can work in England; and
- the criteria foreign workers must meet and sponsor licences.
What is a Foreign Worker?
A foreign worker is someone who works for you and does not have UK citizenship. A foreign worker may not wish to settle permanently in the UK. Instead, they may want to work in the UK for a certain period of time.
Checking a Person is Allowed to Work in the UK
If you consider offering someone a job, you must check if they are allowed to work in the UK. This means you must ask them to prove they can work in the UK before you decide to employ them. If you fail to check that a person can work in the UK, you could receive a fine of up to £20,000.
However, you do not need to conduct a check where the worker:
- is from the EU, EEA or Switzerland;
- already an employee of a UK business; and
- has been in the UK before 1 July 2021.
“Employers still treat the right to work check as a box to tick at onboarding, but that check is what protects you if the Home Office comes asking questions later. Get it right on day one, keep the evidence, and the statutory excuse does the rest of the work for you”
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Understanding the Immigration System
The immigration system is a points-based one which means:
- specific criteria need to be met when employing foreign workers; and
- you will likely need a sponsor licence when hiring foreign workers as staff.
Specific Criteria
The criteria to be met when choosing a foreign worker depends on various things such as how long they may work for you, their nationality and skills. Generally, a foreign worker can work for you where they:
- have a job offer from an approved sponsor at the skill level required;
- can speak English; and
- have 70 points from a list of specific characteristics.
Sponsor Licences
Not all foreign workers will require a sponsor licence to work for you. For example, you will not need one for:
- an Irish citizen;
- a person who has indefinite leave to stay in the UK; or
- someone who has applied to the EU Settlement Scheme and gained settled or pre-settled status.
However, many potential employees will require a sponsor licence. This includes people who come to the UK after 31 December 2020 from:
- the EU;
- Iceland;
- Liechtenstein;
- Norway; and
- Switzerland.
Where your employee needs a sponsor licence, you must check which type of licence you require. This depends on various factors, such as whether the person will work for you temporarily or long-term. You must apply online for your sponsorship licence and pay the relevant fee.
You will also need to check:
- if your business is allowed to apply for a sponsor licence;
- if the job you wish to fill is one suitable for sponsorship; and
- who will manage the sponsorship.
Foreign Workers and Employment Contracts
When employing foreign workers, you should consider whether their employment contract needs adjustments. For example, you should think about:
- how long you expect them to work for your business;
- payment details, such as what currency you will use;
- any financial benefits such as relocation costs and pension contributions;
- social security and tax payments; and
- whether different laws apply.
Key Takeaways
If you employ foreign workers, they must have the right to work in the UK. You can ensure this by asking for proof of their worker’s rights. Additionally, you will likely need to:
- acquire a sponsor license; and
- make specific provisions in the employment contract that vary from those signed by your domestic workers.
If you need help understanding the rules around employing foreign workers in England and Wales, our experienced employment lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents for a low monthly fee. Call us today on 0808 196 8584 or visit our membership page.
Frequently Asked Questions
What is a foreign worker?
A foreign worker is a person who works for you but does not hold UK citizenship. They may work in the UK temporarily rather than seeking permanent settlement, and, unless an exemption applies, they need permission to work here before starting.
What is the immigration points-based system?
The points-based system means foreign workers must score 70 points to qualify for most work routes. Fifty points come from a licensed job offer, skill level and English ability, with the remaining 20 traded through salary or specific qualifications.
How does a business apply for a sponsor licence to hire a foreign worker?
Businesses apply for a sponsor licence online through the Home Office, after confirming eligibility, choosing the right licence type and paying the fee. You must also show you have systems in place to monitor sponsored workers once the licence is granted.
What happens if I employ a foreign worker without checking their right to work?
Employing someone without checking their right to work removes your statutory excuse against a civil penalty. The Home Office can fine you up to £45,000 per illegal worker for a first breach, or £60,000 for a repeat breach.
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