Requirements for Foreign Employees to Work
A non-EEA national seeking entry or permission to remain in the UK for the purpose of employment may need to apply under Tier 2 of the Points Based System (PBS). Applications under Tier 2 can only be sponsored by Home Office approved UK-based employers on behalf of the person they wish to employ (and not by the person themselves).
The Tier 2 (General) route is open to overseas nationals who have been offered a skilled role by a UK employer who has been unable to fill the skilled role with an EEA worker. Employers must ensure that the role for which they are recruiting is sufficiently skilled and the salary which is being offered is at a minimum level. In some cases, the employer will need to show that no EEA nationals are suitable for the post. This will usually be achieved by the employer advertising the post in compliant fashion for at least four weeks and not being able to recruit any suitable candidates from the resident labour force. For roles with a gross annual salary over GBP 159,600 and those which the Home Office consider to be a shortage occupation, the advertising requirement will be waived. A monthly quota applies to certain Tier 2 (General) applications. An initial period of up to five years will be granted with the ability to extend to a total of six years. The Tier 2 (General) route can lead to Indefinite Leave to Remain (ILR) after five years’ lawful residence in the UK. Alternatively, UK employers can use the Tier 2 Intra Company Transfer (ICT) route for temporary transfers of those already employed by a group company outside the UK. Tier 2 ICT visas do not lead to ILR.
EU nationals currently have the right to enter, remain in and work in the UK without a work permit. However, in anticipation of Brexit, the UK government has rolled out a new EU Settlement Scheme. Subject to the terms of Brexit, under the EU Settlement Scheme, EU nationals will be required to register for Settled Status (if they have been in the UK for 5 continuous years) or Pre-Settled Status (if they have been in the UK for less than 5 years). As matters stand, the deadline to register under the new scheme is 30 June 2021 in a Deal scenario and 31 December 2020 in a ‘no-deal’ scenario. In due course, the UK government expects to release further information on new rules for EU nationals which will apply from 1 January 2021. As negotiations between the UK and EU are ongoing and there is the possibility of a ‘no-deal’ scenario, UK employers should regularly check for updates in terms of employing EU nationals.
Does a Foreign Employer need to Establish or Work through a Local Entity to Hire an Employee?
Foreign employers are not required to establish, or work through, a local entity in order to hire employees in the UK. How any tax and national insurance contributions will be dealt with will depend on the circumstances and advice should be sought in relation to this.
Limitations on Background Checks
There are certain background checks that must be carried out before hiring an individual. Employers have a duty to prevent illegal working in the UK by carrying out prescribed document checks on candidates before employing them to ensure they have the right to work in the UK. The processing of criminal convictions data is restricted under the GDPR and Data Protection Act 2018, and guidance is currently awaited to clarify what this means in practice for employers. It is a criminal offence for an employer to require an individual to obtain a copy of their criminal records by means of a subject access request as a condition of employment, or continued employment.
Restrictions on Application/Interview Questions
Employers must ensure that discriminatory practices are not used during the recruitment process, which includes job advertisements and the interview and selection process. It is generally unlawful for an employer to ask about the health of a job applicant, or about any disability they may have, before making an offer of employment. Employers should keep clear and objective records of job applicants, focusing on the extent to which each candidate’s qualifications, skills and experience matched up to the requirements given in the job specification. There is no legislation that specifically deals with social media use in recruitment, but when using social media to assess the suitability of potential new recruits, employers need to take care not to discriminate unlawfully. Employers will need to ensure that they are complying with their data protection obligations if using this information during the recruitment process.