How to Manage Recruitment Immigration Risks

UK employers are confronted with rising immigration-related recruitment challenges when considering non-UK nationals. During July-September 2016, UKVI imposed fines totaling £10.2 million on UK employers for illegal labor. For businesses, tapping into the global talent pool is essential for sustaining operations and gaining a competitive edge.

However, the repercussions of hiring unauthorized employees and neglecting immigration responsibilities are substantial and should be steered clear of. In essence, your recruitment procedures should lead you to the most suitable candidates – those possessing the requisite skills, expertise, and qualifications. If the UK job market doesn’t provide the answer, looking to the global talent pool for recruitment may offer a viable solution.

This has become a prevailing practice in sectors like health and social care, technology, hospitality, leisure, agriculture, and construction, where domestic labor shortages compel employers to seek talent internationally. However, employers must remain vigilant about several risks when hiring non-UK workers. At each stage of the recruitment process, potential immigration compliance challenges may arise.

1. Job Postings – Resident Labor Market Examination

Tier 2 sponsor license holders play a crucial role in maintaining immigration compliance. Staying current with sponsor license duties is a substantial business risk. Non-compliance can lead to license downgrades, revocations, hefty fines, and even imprisonment. One major area of concern for sponsors involves the application of the Resident Labor Market Test (RLMT).

The RLMT serves to safeguard the local workforce by verifying the authenticity of the job being offered. The government mandates that UK employers must assess the job market to ensure that the role they intend to assign to a foreign worker cannot be filled locally. Additionally, they must confirm that the position is skilled and meets the criteria for a visa to be granted to an individual to work in the UK.

Sponsors obligated to conduct this test must advertise the job vacancy in two locations specified in the guidelines provided by UK Visa and Immigration (UKVI):

  • National newspaper
  • Professional journal
  • University milkround
  • Rolling recruitment campaigns
  • Recruitment agencies and head-hunters
  • Internet

The job can be promoted through a single method, provided that two advertisements are concurrently active. This process should span 28 days, and you must maintain clear evidence of it. Keep a record of both the publication date and closing date. It’s advisable to include both the opening and closing dates within the advertisement content.

The following information is mandatory on your advertisements:

  • Job Position
  • Job Location
  • Salary Information
  • Primary Job Responsibilities
  • Qualifications
  • Advertisement Start/End Dates

UKVI retains the authority to request a copy of the advertisement at any stage of the application procedure. If the advert isn’t requested during this phase, it is likely to come to their attention in case of a site visit to your premises, where they may scrutinize your records.

The main exemptions for when RLMT does not need to be carried out are:

  • High-income earners – for individuals earning an annual salary package of £155,300 or more.
  • Extension applications – for current employees seeking to prolong their stay in the UK while performing the same role.
  • Shortage Occupation – applicable when the job is listed on the UKVI’s shortage occupation list, and the employee will work a minimum of 30 hours per week.
  • Prior grant of leave – when a prospective employee applies for Tier 2 (General) leave within the UK and has previously been granted permission to enter or stay under specific categories.

This list is not comprehensive, and additional exemptions may also be applicable.

2. Selection and Interviewing – Avoiding Discrimination

In the recruitment process, employers must refrain from making assumptions regarding an individual’s right to work or immigration status based on their ethnicity, accent, physical appearance, or length of time in the UK.

According to the Equality Act, it is illegal to engage in racial discrimination against a job applicant or employee, which encompasses:

  • colour;
  • nationality (including citizenship);
  • ethnic origin; or
  • national origin.

While the UK remains part of Europe, the principle of Free Movement of Labor remains in effect. Consequently, under the Equality Act, employers must treat applications from both UK citizens and EU nationals with equal consideration. Imposing arbitrary conditions like exclusive hiring of British workers would be considered discriminatory.

Formal procedures for shortlisting, interviewing, and selecting candidates should include considerations for compliance risks, and it’s essential to ensure that staff are trained and comprehend the consequences of non-compliance.

3. Onboarding: Right to Work

The Immigration Rules are clear: employing an individual without a valid Right to Work in the UK is strictly prohibited. Non compliance with your Right to Work obligations can lead to severe consequences, including civil penalties, sponsor license downgrading, or even revocation.

As an employer, your responsibilities encompass the following:

  1. Verify and retain copies of original, “acceptable” documents before an individual commences work for your organization.
  2. Conduct recurring checks at least annually, especially for individuals with time-limited stay permissions.
  3. Ensure that you do not employ anyone in violation of their restrictions, including the nature of the work or the allowed working hours.

This procedure should be applied uniformly to all employees, as singling out specific nationalities could potentially constitute a basis for discrimination.

Your onboarding process should be designed to ensure a consistent and precise adherence to your Right to Work obligations. This might involve utilizing technology to collect all required documentation during the onboarding process and receiving alerts regarding the expiration of permissions and necessary follow-up actions.

What can HR do to manage risk and ensure organisational compliance?

HR professionals should maintain the continual relevance and appropriateness of policies and procedures. Equally important is the training of line managers and those involved in recruitment to understand their responsibilities and best practices, particularly in response to frequent changes in immigration regulations.

We are seasoned immigration legal advisors for employers, offering expertise in all aspects of immigration compliance and risk management, as well as global mobility strategy. If you have inquiries related to hiring international staff, please don’t hesitate to reach out to us.

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