UK: Employing Non-EEA Workers: A Brief Overview

Last Updated: 1 March 2013
Article by Nicholas Le Riche

This brief guide is intended to assist employers in their employment relationship with workers from outside the EEA (European Economic Area), and provide a general overview of what employers need to do, both in the run up to employment and throughout the duration of the employment itself. It is, of course, no substitute for our specialist legal advice, but we hope that you find it useful.

Who needs permission?

It is worth noting that nationals of a state within the EEA (except Bulgarian and Romanian nationals), Swiss nationals and certain family members of those categories do not need permission to take up work in the UK. Nevertheless, in practice there is little difference in the procedures employers will have to go through in advance of a new employee starting, as all employees should really be asked to jump through similar, if not the same, hoops with regard to proving their entitlement to work. The requirement to provide evidence even extends to British citizens, certain categories of which, such as British overseas citizens, do actually require permission to work in the UK.

Remember that not all workers from outside the EEA need sponsorship, given that some may be in the UK, for example, on spouse visas. That, however, does not remove an employer’s obligation to keep the appropriate records or undertake the necessary checks. Compliance and sponsorship should not be confused.

Also remember that if you need to issue a certificate of sponsorship under Tier 2 of the Points Based System to a prospective employee, that employee will need to apply for and have been granted leave to remain on the basis of that certificate in order to start work for you. This might take some time, and if the candidate is currently working for a different sponsor in the UK, we would recommend they delay resigning until the new paperwork is in order (providing notice periods permit this), to avoid the prospect of the UKBA curtailing their visa. This is particularly important where the new employer has to apply to become a sponsor in order to take on the employee, given that the sponsorship licence application can take a long time to be granted. Until it is, the prospective employee cannot commence work for the new employer and, on other hand, might not be able to leave the UK for fear of being subject to the new ‘cooling off’ requirement. We strongly recommend you seek advice if you or your successful candidate find yourself in such a situation.


All employers will naturally want to confirm the ability to work in the UK of all those who apply for jobs. There is nothing wrong in a job advertisement openly stating that one of the requirements is permission to work in the UK and making offers and/or contracts conditional upon the production of specified documents proving such permission. However, there is also nothing wrong in a prospective employee applying for a job even though they currently have no entitlement to work in the UK, given that they can then apply for a visa or permission to work once they have been offered a position.

It is important to avoid potentially discriminatory questions at interview and to ask the same questions of every candidate. Even if you think that there is no point asking a candidate at interview, who you think is evidently born and raised in the UK, you must ask all candidates for proof of permission to work in order to avoid an accusation of race discrimination from another candidate who has been asked that question.

If you get this part wrong, a disgruntled candidate could potentially make a claim for discrimination on the grounds of race and/or nationality to an Employment Tribunal, which could, theoretically at least, order you to pay an unlimited award of damages. As a result, you simply must bear discrimination in mind when drawing up your advertisements and interview templates. If in any doubt, let us know and we can advise as to whether your advertisement or interview template could be viewed as discriminatory.

Document checks?

Employers are liable to civil penalties and criminal sanctions in the event that they fail to prevent illegal working in their organisations. If it decides to inspect your organisation, the UKBA will assess your compliance with the obligations of migrant sponsorship against a given set of criteria. If you have implemented the correct systems, the law will give you a ‘statutory excuse’ enabling you to avoid a penalty in the event that illegal working is detected in your organisation.

Firstly, it is important to remember that an employer can only avail itself of the statutory excuse if the checks were carried out before the candidate starts work. Doing them on the start date will not be enough.

Employers who only undertake some of the required checks will only be able to benefit from a partial statutory ‘excuse’, as opposed to a full one. The employer needs to request original documents from the prospective employee – copies will not suffice. When you do see the originals, remember to mark the copies with ‘originals seen’, preferably accompanied by a date, so that it is obvious on any future inspection that you have indeed checked the originals.

The documents an employer will need to see and the frequency of document checks vary according to exactly when the employee was taken on and what type of visa they have. For example, a candidate with indefinite leave to remain (that is, no time restriction on their visa) will need to supply different documents from someone who is on a Tier 2 (General) visa expiring next year. Again, if in any doubt, we suggest you seek specialist advice.

The UKBA recommends that employers check valid passports or travel documents, but evidence in expired documents can be used in some cases, for example, if an individual simply does not have a current one. However, accepting expired passports is not ideal and we would recommend the use of other documents instead.

Lastly, there are certain circumstances in which the UKBA requires employers to use its Employer Checking Service before employment commences, in order to confirm the right to work.

What to do with the documents when they’ve been supplied

When you receive the documents from the individual concerned, you will need to check that they are the person named in the documents.

The UKBA does not expect employers to be experts in identifying forged documentation. The checks really consist of applying a common sense approach. The forgery would need to be reasonably apparent to trigger an obligation on the part of the employer to identify it. For example, where a passport photograph shows obvious signs of having been tampered with or if reasonable suspicion arises from the look and feel of a particular document.

The UKBA guidance states that falseness in a document will be reasonably apparent ‘if an individual who is untrained in the identification of false documents, examining it carefully, but briefly and without the use of technological aids, could reasonably be expected to realise that the document in question is not genuine’.

On an inspection the UKBA will want to see that a number of ‘standard’ checks have been performed on the documents.

Making and retaining copies

Once you have collected the appropriate documents and satisfied yourself that they are genuine and correspond to the candidate who provided them, you must make copies.

Those copies must be in a format that cannot be altered at a later date, such as a scan or photocopy, and kept for the duration of the individual’s employment and for a period of two years after their employment ends.

It is important, particularly for larger employers, to remember that the document copies must be in an accessible format. In the event of an unannounced inspection, the UKBA will want to see documentation without delay. Accordingly, if you operate file storage systems, for example, through a third- party document storage provider, you may wish to store an electronic copy of the documents on site so that they can be easily accessed.

Where you find, after an employee has started work, that documents showing the right to work have expired, put the relevant employees at risk of dismissal and properly investigate the matter. You should make enquiries of the UKBA, use their checking service and ask the employee the appropriate questions. Avoid the knee-jerk reaction of dismissing immediately without investigating, as, if it turns out that the employee is still entitled to work, they may bring a claim against you for unfair dismissal.

If, after your investigations, the employee remains unable to show the right to work, you can proceed to dismiss them, citing statutory restriction or ‘some other substantial reason’ as potentially fair reasons.

Always provide the employee with an opportunity to appeal your decision to dismiss. Doing so provides a further opportunity for the employee to provide the evidence. It will also increase the chances of an Employment Tribunal finding the dismissal to be fair.

The sponsor management team

Many employers will already be familiar with the Sponsor Management System, the UKBA’s online tool which enables sponsors to manage many aspects of sponsorship. However, it is worth bearing in mind that the UKBA requires sponsors to inform it of certain changes within 10 days of their occurrence, such as a failure to attend on the first day of employment or unauthorised absences of 10 or more working days.

Make the failure to provide required documents or misleading the employer an example of gross misconduct in your staff handbook. Doing so will act as an incentive to employees to comply with your document requirements and also make any disciplinary action more straightforward.

If it does not already state this, employers should also consider updating their employee handbook and/or contractual terms and conditions to ensure the onus is on employees to inform them of any changes of which the UKBA should be made aware.

Also bear in mind that if a sponsored migrant’s leave to work in the UK is curtailed because of the employer’s failure to abide by its sponsorship obligations, they are entitled to make a claim to an Employment Tribunal for unfair dismissal. In practical terms, losing a sponsorship licence can have an enormous impact on a company’s ability to operate given that migrant workers, some of whom might occupy key positions, will be obliged to cease work immediately.

BDB would recommend that companies perform an annual internal audit of HR files and employee handbooks, to ensure that their sponsorship duties are being fully implemented. We can provide assistance in this important area. Please do contact us for further details.

Resident Labour Market Test

Although comprehensive details of the Resident Labour Market Test (RLMT) are beyond the scope of this briefing, it is important nevertheless to highlight that in order to take on most non-EEA migrants for a role which is not a ‘shortage occupation’ or which pays under £150,000 per year, a sponsor first needs to show that it has advertised the relevant post for a certain period of time in a given set of media, and that it has not been possible to fill the vacancy using the settled or ‘resident’ labour market. The employer has to keep records of the advertisements it has placed, to show to the UKBA in the event of an inspection.


One of the issues which might not necessarily be at the forefront of an employer’s mind on a TUPE transfer is the issue of documentation for non-EEA staff. However, the transferee will assume all liability should any issues arise. Therefore, it is vitally important that an incoming service provider or an acquiring entity obtain the necessary due diligence information to establish how many non-EEA workers are transferring, what kind of visas they have and whether the correct documents are held for them. The new employer must undertake new document checks, regardless of when the transferor last undertook them, within 28 days of the transfer. If the incomer is not already a sponsor, they will have 28 days from the transfer date in which to apply to become one. If it does not, the UKBA will curtail the leave of the transferring non-EEA workers.

Agency staff/contractors

You will only have to undertake right to work checks for those employees actually employed by you. Accordingly, such checks are to be performed by the employment agency in the case of workers who are provided on a temporary basis and whose salary is paid by the employment agency itself. However, if an agency simply provides headhunting services and the candidate is coming to you on a permanent basis and will be on your payroll, you will be responsible for performing the necessary checks.

No checks need to be done for contractors who are genuinely self-employed. However, if, considering all of the circumstances, there is a contract of employment, then, unsurprisingly, you will need to perform the appropriate right to work checks.


Employers should also bear in mind the restrictions on the hours that students are able to work. In general terms, students at degree level cannot work more than 20 hours during term time, this restriction not applying outside of term time. For most students pursuing courses at below degree level, the weekly limit is 10 hours. However, the requirements differ slightly according to the date on which the student applied to come to the UK and employers should ensure they are aware of the restrictions applying in the case of each worker.

Also remember that Tier 4 students switching into Tier 2 need to have actually graduated before they start work for you under a certificate of sponsorship.

Lastly, bear in mind that students cannot occupy full-time permanent positions.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Nicholas Le Riche
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