So what is the law regarding the employment of overseas workers?

Whether or not a worker from overseas can be employed depends on the nationality of the worker.

You can employ any worker who is from the European Economic Area (EEA) - namely Austria, Belgium, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden and the United Kingdom.

EEA nationals are entitled to work in any country within the EEA and receive the same rights as that member state's own citizens.

For members of the EEA, the permits granted to live and work in the UK are not subject to any time limitations.  The right of permanent residence officially occurs once five years' residence has been completed during which time the EEA national must have been employed , self employed, a student, or have been economically self sufficient.

Any nationals of the EEA who wish to work in the UK for more than a month have to be registered on the Worker Registration Scheme.

Non-EEA nationals must obtain work permits.  Certain limited categories of persons do not require work permits.  These include business visitors; Commonwealth citizens who have been given leave to enter or remain in the UK; Commonwealth citizens with a parent who was a British citizen and have the Right to Abide in the United Kingdom; persons with indefinite leave to remain in the UK; persons admitted to the United Kingdom for a period of at least 12 months as students and those who do not have any other conditions attached to their stay in the UK.

Permits are normally issued only in respect of individuals who have a UK degree level qualification (or equivalent); a HND level occupational qualification (or equivalent) plus one years work experience in the type of job for which the permit is sought.

The eligibility differs within each type of employment, but many of the requirements are identical in each case.  The worker must intend to fulfil full time employment for the specified employer only; be able to support themselves and their dependants without needing any support from public funds and intend to leave the UK if the employment comes to an end.

Work Permit

If an employer wishes to employ a foreign national the company must first apply for a work permit on the employee's behalf.

There are two main types of application - Tier one and Tier two.

Tier one applications can be used if the post meets the skills criteria and one of the other following applies:  intra company transfers, where an employee of a multi-national company is transferring to a skilled post in Great Britain; the post is at board level; the post is new and is essential to inward investment and the post is an occupation recognised by the Work Permits Agency as being in short supply.

Tier one applications do not need supporting evidence and need not be advertised in advance. 

Tier two applications are standard work permit applications requiring proof of qualifications and experience, evidence of employment history and details of recruitment search.

If the Tier two application system is used an employer must consider carefully whether the vacancy can be filled by the promotion or transfer of an existing worker; advertise a vacancy in local, national and/or EEA press and in appropriate trade and professional journals; and send copies of any advertisements with the application for the permit and give full details of the results of such advertising.

An asylum seeker must apply for permission to work from the Home Office. Remember it is a criminal offence to employ a person who is subject to immigration control and does not have permission to live or work in the UK.

An employer has a defence if they check that the potential employee is in possession of one of a range of documents.  Relevant documents include a UK Passport; a documented national insurance number; a passport confirming the person is a British Citizen; a passport or identity card of an EEA National or which otherwise shows entitlement to live and work in the UK; or a letter from the Home Office confirming that the person is allowed to work. 

Under the Race Relations Act it is unlawful for any employer to discriminate on grounds of race, colour, ethnic or national origin or nationality.  If you refuse to consider anyone who looks or sounds foreign this is likely to be unlawful discrimination.

You must treat all applicants in the same way at each stage of the recruitment process and carry out identical checks for all applicants.  You must also monitor your recruitment process to ensure that it is fair for all.  You may not assume that a foreign national has no right to work in the UK.

Three steps

You must follow three steps to ensure that your obligations as an employer are met.  Firstly, ask to see one or more of the relevant documents listed above;secondly, satisfy yourself that the documents are rightfully held by your employee.  You must check any photos, birthdates and other personal information, as well as having regard to expiry dates of certain documents.  Finally, copies or scans of every document must be made and kept by you confidentially.

Any prosecutions will be dealt with in the local Magistrates Court.  The maximum penalty which will be available to the Court in relation to each charge is a Level 5 fine.  This is currently up to £5,000. An employer can be charged in respect of each person being employed illegally.

Jonathatn Exten-Wright is a partner and Lisa Forsyth is a trainee in the Employment Department of DLA Pipe UK LLP