Employment law and immigration law are two distinct areas of law. However, their interaction can create headaches for businesses. In this series, we explore how to navigate scenarios where the rules governing the right to work intersect with employment law.
Employment and immigration laws have developed rapidly over the last few decades. They have become two complex, politically charged and fast-changing bodies of law. Anybody working in or near the worlds of HR and global mobility needs to have at least a passing awareness of both areas.
It can be helpful to think of employment law and immigration law as two siblings. They usually get along fine. Sometimes they even work together well. But they are distinct beings. Occasionally, they get in each other's way and can make things awkward for each other.
When we take a closer look at their distinct characteristics, the potential for conflict becomes clearer:
- Employment law governs how the working relationship functions. It is concerned with rights for employees, such as rights to pay, rest, holiday and notice, as well as protection from discrimination and unfair dismissal. Employment tribunals and civil courts hear disputes between employers and employees. If an employer breaches employment law, an employee may lodge a claim. If the employee wins, the employer will usually be ordered to pay compensation.
- Immigration law exists in a different world. In this world, the government (in the form of the Home Office) is king. Immigration law dictates, among other things, how someone can join a UK workforce from abroad. The Home Office sets, monitors and enforces immigration rules. All UK-based employees must have the 'right to work' in the UK for their employer. A failure to follow the rules – for example, working without appropriate immigration permission – may result in the Home Office taking action against a business and/or the individual.
One key right under employment law is protection from discrimination. However, immigration law is, by its nature, race discriminatory. It creates a two-tier hierarchy of job applicants and employees, divided along nationality lines. To hire a migrant who does not already hold some form of status that enables them to work in the UK, a business will usually have to sponsor them under a work immigration route which brings with it costs, record keeping and compliance obligations.
The costs and complexities involved in hiring and managing the immigration status of international talent means employers will often grapple with situations that are unique to their migrant workforce. Those employees will likely – by virtue of their employment in the UK – benefit from UK employment rights. This will likely include protection from discrimination and unfair dismissal.
We have been fielding more questions than ever before on topics that touch on both immigration and employment law. This has, in large part, been caused by government policy that is designed to make the sponsorship of migrant talent less attractive, including:
- Rises in the salary thresholds required for sponsoring workers, especially under the Skilled Worker route. The general salary threshold jumped from £26,200 to £38,700 a year in April 2024. The Home Office may announce further hikes to salary thresholds in due course. Employers often ask us what, if anything, they can do when it comes to managing recruitment where sponsorship is either unavailable or unattractive in respect of a particular role.
- Rises in immigration fees over the last couple of years, including significant increases to application fees and the Immigration Health Surcharge. The effect of these increases has vastly increased the overall cost of sponsorship for employers. This often prompts questions around whether and how an employer can recoup immigration costs from its sponsored workers.
Some of the most common problem areas where immigration and employment law meet are explored in this series:
- The employment and immigration intersection: excluding or limiting applications from candidates who need sponsorship
- Illegal working regime to be expanded to non-employers
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.
