The law and overseas stylists

Do you employ stylists from overseas in your salon? If so, did you know that you could face a fine of up to £10,000 if you negligently hire illegal workers? Salons that knowingly hire illegal workers risk an unlimited fine and/or a prison sentence of up to two years.

Who can work in the UK?

There are a lot of misconceptions over who is entitled to work in the UK. Those allowed are nationals of a pre-1994 member state of the European Union:

• Austria
• Belgium
• Cyprus
• Denmark
• Finland
• France
• Germany
• Greece
• Ireland
• Italy
• Luxembourg
• Malta
• Netherlands
• Portugal
• Spain
• Sweden
• UK

Members of the European Economic Area (EEA):

All of the above, plus

Norway

Iceland

Liechtenstein

Swiss nationals are generally free to take employment in the UK. Nationals of the eight countries that joined the EU in May 2004 (Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Slovakia and Slovenia – known as A8 countries) are required to register with the Home Office when they take work in the UK. Once an employee has been working in the UK legally for 12 months without a break in employment, the requirement to register no longer applies and they can obtain a residence permit confirming their right to live and work in the UK. Nationals of Romania and Bulgaria (known as A2 countries), which joined the EU on 1 January 2007, must not start working in the UK before they get authorisation from the Home Office. To obtain authorisation, the employer has to make an application for a work permit for the prospective employee and, once approved, the employee will need to apply for an accession worker card.

What happens if you employ illegal workers?

The Immigration, Asylum and Nationality Act 2006 introduces two new penalties for employing illegal workers: up to two years in jail and/or an unlimited fine if the employer knowingly employs an illegal worker. The maximum civil penalty is increased to £10,000. An employer can be fined for each person employed illegally. An employer will have a defence if the (prospective) employee provides the employer with certain document(s) listed below. These are similar to the documents currently needed to establish a defence under Section 8 of the Asylum and Immigration Act 1996.

• It needs to take reasonable steps to check the validity of the document(s)
• Keep copies of the document(s) for at least two years after the employment terminates
• Satisfy itself that any photograph(s) in the documents are of the (prospective) employee
• Satisfy itself that the (prospective) employee’s appearance is consistent with any date of birth in the document(s)
• Take all reasonable steps to check that the (prospective) employee is the rightful owner of the document(s)
• Retain copies of the whole of any document(s) that are not passports or other travel documents in a format that cannot be subsequently altered; and copy specified pages of any passport or other travel document in a format that cannot be subsequently altered.

An employer cannot rely on the statutory defence if it has made the relevant checks but knows that the individual is not entitled to work in the UK.

What checks should you make?

Any formal offer of employment should require the potential employee to produce the necessary documentation to establish their right to work in the UK as a condition of the offer of employment. The employer must check the documents before the employment begins to meet the strict requirements of the statutory defence. The documents include any one of the following:

• A passport showing that the holder is a British citizen or a citizen of the UK or colonies having the right of abode in the UK
• A passport or national identity card showing that the holder is a national of the EEA or Switzerland
• A residence permit or a permanent residence card issued by the Home Office or the Border and Immigration Agency to the family member of a national of an EEA country or Switzerland
• A passport or other travel document endorsed to show that the holder is exempt from immigration control
• A birth certificate issued in the UK that includes the name of at least one of the holder’s parents
• A birth certificate issued in the Channel Islands, the Isle of Man or Ireland
• A certificate of registration or naturalisation as a British citizen
• A letter issued by the Home Office or the Border and Immigration Agency to the holder that indicates the person named in it is allowed to stay indefinitely in the UK.

Alternatively, an employer can use any of the following:

• A passport or travel document endorsed to show that the holder is allowed to stay in the UK
• Or, any of the following issued by the Border and Immigration Agency:
  • A Biometric Immigration Document
  • a work permit or other approval to take employment
  • a certificate of application
  • a residence card or document
  • an Application Registration Card or an Immigration Status Document.

Employers should carry out these checks on all applicants in order to avoid race discrimination. To help employers, the Home Office has issued a code of practice on avoiding race discrimination in recruitment entitled Guidance for Employers on the Avoidance of Unlawful Discrimination in Employment Practice While Seeking to Prevent Illegal Working. Failure to observe the code of practice is not itself unlawful, but may be taken into account by an employment tribunal in deciding whether there has been discrimination.

What is sponsoring overseas staff and how do you go about it?

Most nationals of other states are subject to immigration controls and require work permits. From March 2008, a points-based system will begin to operate. The new system will reflect aptitude, experience, the level of need in any given sector and the likeliness that the applicant will comply with their immigration requirements. In tiers 1 and 2, points will also be awarded for attributes such as age, previous salary or prospective salary and qualifications. For each tier, applicants will need to score sufficient points to obtain entry clearance or leave to remain in the UK.

• Tier 1: Highly skilled individuals such as entrepreneurs, investors and graduate students
• Tier 2: Skilled workers with a job offer to fill gaps in the UK workforce
• Tier 3: Limited numbers of low-skilled workers needed to fill temporary labour shortages
• Tier 4: Students
• Tier 5: Youth mobility and temporary workers.

All applicants in tiers 2-5 will need to provide a certificate of sponsorship from an approved sponsor when making an application. The certificate of sponsorship will act as an assurance that the migrant is able to do a particular job or course of study. The sponsor’s rating/track record in sponsoring migrants will determine the number of points applicants receive for their certificate. Employers will need to obtain a licence from the Home Office for the particular tier in which they wish to sponsor employees, and accept certain responsibilities for their employees to help with immigration control.