Ed Marchant of IBB Solicitors sets out the key considerations you need to bear in mind when employing someone who is not a UK national.
An oft-heard phrase is that a company’s most valuable asset is its employees. I am not writing to argue the accuracy or otherwise of that statement, but what is absolutely true is that getting the right person to fill any particular role is a vitally important task for any business. Sometimes, a role is so fundamental to a business or so niche that employing the very best candidate means hiring someone from outside the UK.
So, you have undertaken a recruitment campaign and successfully identified the perfect candidate for the role, but they happen not to be a UK national. Here I will briefly set out the key considerations you need to bear in mind when employing this person, and the key hurdles.
This is the cornerstone of hiring someone from abroad and should be your first consideration – does the employee have the right to work in the UK? If the business is found to have employed an illegal worker (even unknowingly) you could have to pay a fine of £20,000 per employee. If they are from the European Economic Area (EEA), no problem, just check their right to work documents and ensure they are from an EEA country or Switzerland. Of course, this position is expected to change following Brexit, but this remains under discussion.
If they are a non-EEA citizen, you will need to ensure that they have a valid visa to live and work in the UK. There are different types of visa that could be suitable, but firstly your business needs a Sponsor Licence allowing you to assign a ‘certificate of sponsorship’ to the individual you have selected. The two most common visa routes are:
- Tier 2 (General) visa – to employ someone who has skills that cannot be found in the UK employment market
- Tier 2 Intra-Company Transfer visa – to employ an individual in the UK who already works for the business or a group business overseas
Do seek specialist immigration advice if you need further information on the right visa to apply for, and be aware that there may also be English language and minimum salary requirements. There are also significant Home Office fees to consider, including the immigration skills charge for workers sponsored under the Tier 2 (General) visa (currently the charge is £1,000 per year for each sponsored employee).
Contract of Employment
Section 1 of the Employment Rights Act 1996 sets out a number of different terms and conditions of employment that you must provide an employee in writing. There can be penalties for not doing so, so please ensure that you provide an employee with this information within 2 months of them starting employment.
References and Criminal Record Checks
You want to be sure that you are employing the right person, so do not hesitate in asking for references from international companies. You may also wish to undertake DBS or other overseas criminal records checks against employees (which may be necessary in some roles that work with children or vulnerable people).
Tax and National Insurance
You need to ensure that you are compliant in relation to international tax and social security withholding for the individual you have hired. Generally, the UK tax and social security position for an employee recruited overseas to work solely in the UK is straightforward – PAYE and National Insurance contributions will be payable. However, if an employee is also performing duties in another country it is likely that they will be subject to tax in that country even if they have a UK contract of employment – tax withholding obligations are determined by the particular employee’s tax position and not by the location from where they are paid.
Race (which extends to nationality) is a protected characteristic under the Equality Act 2010, which means that no employee should suffer any detriment as a result of not being British or from being from a particular country. Do check any formal or informal policies or procedures in place to ensure this is not the case – for instance your right to work checks should apply to all your new recruits, not just those who are not British.