Answered by Sara Williams, CEO, Vitesse Media
A foreign national is employed in the same way as any other employee apart from having to ‘pass’ certain additional checks. The basic legislation governing the employment of personnel is the Asylum and Immigration Act 1996. There have been certain amendments to it over the years which includes from the 1st May 2004, changes to the types of documents which need to be checked.
The first issue to consider is that all applicants must be treated the same. Therefore, there is a risk of discriminating if you question only those applicants whose skin colour appears to indicate “foreign” or their accent indicates “foreignness” etc, as to whether they are entitled to be here and to apply for work when you do not ask the same question of someone that looks like a “white Anglo Saxon”, then you face the very real possibility of a race discrimination claim.
One way to avoid discriminating would be to require the proof of the right to work here from every applicant – which is a bit administratively heavy handed, or you could require it simply of the individual or individuals to whom you offer the job having gone through the selection process. You must not obviously practice any form of race or nationality discrimination during the process.
You will need to carry out checks of certain specified documents. Clearly it is a very sensitive issue, which carries with it penalties not just of a financial nature but also criminal, therefore you must take considerable care. The sort of documentation you are required to see, is described in two lists, list 1 and list 2. You must see one of the documents in list 1 or two of the documents in list 2. List 1 would, amongst others, include a passport showing that the holder is a British citizen or has a right to residence in the UK or a passport or other document issued by the Home Office which has an endorsement stating that the holder has a current right of residence in the UK as a family member of a national from an EEA (European Economic Area) country or Switzerland. List 2 contains a list of some 19 or so documents. Examples would be a document giving the persons name and permanent national insurance number on a P45, an NI card, a letter from a Government Agency or a document like a full birth certificate issued in the UK which includes the names of the holders parents or a letter issued by the Home Office which indicates that the individual can stay indefinitely in the UK. (Might be a good idea to take professional advice?)
Furthermore, having had a look at these documents you have to take other reasonable steps to ensure that the documents are genuine, for example, if there are any photographs on it you must check that the photograph does actually look like the individual; or the acceptance of a birth certificate showing that somebody is twenty years of age when they appear sixty in physical appearance would be difficult to explain!
You have to check expiry dates have not passed or that the stamps or endorsements are for the type of work that you are looking to employ the individual to carry out. If the two documents have different names on, which could be quite genuine if somebody has married for example, then you have to make sure they have evidence that such a marriage has taken place rather than it is two documents for two separate people.
The employer must take a photocopy or scan of the documents that they look at and they must keep a record of every document that they copy. Legislation makes it a criminal offence to employ someone who has no right to work in the UK and gives employers a statutory defence against prosecution if they can show that they have carried out the checks to which I have referred. If you are an employer and you have doubts about an individual then you should check with the Immigration Service at the Home Office to ensure that you are not infringing any of the relevant legislation.
Some of the detailed information in this article may be out of date. Click here to access more recent advice on this topic.
Sara Williams is CEO of AIM-listed Vitesse Media, the publishing company she started in 1997. A former investment analyst with Kleinwort Benson, Sara is the author of The FT Guide to Business Start-up (over one million copies sold). She has written for several national newspapers and appears regularly in broadcasts on TV and radio.