Employing migrant workers



 

Main groups you can employ in the UK without committing an offence

Q28 - Which groups in the UK are not subject to immigration control?

The main groups who are not subject to immigration control in the UK, and who you can employ without restriction are: You should not employ any individual solely on the basis of their claim to belong to one of these groups - this will place you at risk of employing someone illegally if their claims are false. You should obtain a defence for all of your prospective employees by following steps 1 - 3, as detailed in Q8.

Family members of nationals from EEA countries and Switzerland may apply for Residence Documents which demonstrate their entitlement to work in the UK. However, under European legislation, they are also entitled to engage in employment whilst these applications are under consideration, and before Residence Documents have been issued by the Home Office. The Home Office will provide such applicants with a letter of acknowledgment. This can be used as a single document under List 1 to verify that he or she has applied for confirmation of their right of residence in the UK as a family member of an EEA or Swiss national, and that he or she may engage in work whilst this application is under consideration. They are entitled to work, but a decision on their application should be made within six months of the application being made, and after that time they should provide the employer with the Residence Document.

If you have any concerns about the validity of the documents presented to you, you should contact the Employer's Helpline on 0845 010 6677 for further advice.

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Q29 - What is the Common Travel Area (CTA)?

Citizens of the UK, Channel Islands, the Isle of Man and Ireland are members of the Common Travel Area (CTA) and have no immigration controls placed upon them whilst living and working in the UK.

Citizens of these countries can be employed without restriction and may prove their eligibility to work by showing either their passport as a single document, which will state that the holder is a British citizen or an Irish citizen. Alternatively, they can show a combination of the following documents from List 2:

An official document showing the permanent National Insurance Number and a birth certificate issued in:
  • the Channel Islands; or
  • the Isle of Man; or
  • Ireland.
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Q30 - What happens if a potential employee presents what appears to be a forged document?

Please go to the Working in the UK website for examples of what documents should look like. If in doubt, telephone the Employers' Helpline on 0845 010 6677.

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Q31 - Can a British Dependant Territories Citizen who has a connection with Gibraltar legally work in the UK?

A passport which states that the holder is a British Dependant Territories Citizen, who has a connection with Gibraltar cannot be accepted as part of the section 8 defence for an individual employed on, or after 1 May 2004.

However, British Dependant Territories Citizens were renamed as British Overseas Territories Citizens in 2002. Those British Overseas Territories Citizens who have a connection to Gibraltar should be permitted a right of abode in the UK. The right of abode in the UK is established by an endorsement in the individual's passport and means that the holder does not have any immigration controls placed upon them whilst living and working in the UK. This document can be accepted as a single document from List 1, and an employer can establish statutory defence under section 8 by copying it.

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Q32 - Do I need to establish a defence under section 8 when employing those workers who are exempt from immigration control?

It is a criminal offence under section 8 of the Asylum and Immigration Act 1996 to employ a person aged 16 or over who is subject to immigration control and who has no permission to work in the UK, or who works for you in breach of their conditions of stay in the UK.

The law states that the offence of employing an illegal migrant worker only applies where a person employs an individual who is "subject to immigration control." Employers would have to satisfy themselves that a job applicant, who claims to be exempt, is actually exempt. If the person is exempt, then the employer would not be subject to prosecution under section 8.

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Q33 - Are there any other circumstances in which I will not commit an offence by employing someone under section 8?

You will not commit an offence under section 8 if you are employing a person who is subject to any of the following immigration conditions:
  • they have limited leave to enter or remain in the UK, which does not prevent them taking the employment in question; or
  • they have applied to the Secretary of State for variation of this leave; or
  • they are within the period during which an appeal could be brought, or have a pending appeal under Part 5 of the Nationality, Immigration and Asylum Act 2002, against refusal of that application; or
  • they are permitted to work under the Immigration Rules.
There will also be certain people working in the UK under the terms of arrangements which are well known to the employers in the sectors concerned. Section 8 will not affect those arrangements.

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