Irrespective of the business sector, whether or not a worker from overseas can be employed depends on the nationality of the worker.

If the worker is from the European Economic Area which is made up of the 25 member states of the European Union, plus Norway, Iceland and Liechtenstein the worker is free to come to the UK to seek or take up employment without first obtaining a work permit.

If the worker wishes to stay longer than six months they may apply for a residence permit.

The government is currently operating a “Workers Registration Scheme” to monitor participation in the UK labour market of workers from the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Slovakia and Slovenia. Any employer who recruits a person from one of these countries must ensure that the employee registers with the Home Office.

Non-EEA nationals are subject to immigration control and must obtain work permits in order to be able to take up employment in the UK. Permits are normally issued only in respect of individuals who have specifid skills.

If an employer wishes to employ a foreign national, he must first apply for a work permit on his behalf. There are two main types of application - Tier one and Tier two. Applications should be made on Form WP1 from www.workingintheuk.gov.uk.

The general criteria are:

• a genuine vacancy exists;

• there is no suitable resident labour available to fill the post offered;

• the employer has made adequate efforts to find a worker from suitable resident labour or from other member states of the EEA;

• the application is for a named worker for a specific post; and

• the person is suitably qualified or experienced.

Tier one

Applications can be used if the post meets the skills criteria and one of the other following conditions applies:

• intra-company transfers: an employee of a multi-national company is transferring to a skilled post in the UK;

• the post is at board level;

• the post is new and is essential to inward investment;

• the post is an occupation recognised by the Work Permits Agency as being in short supply.

Tier one applications do not need to be supported by evidence of educational qualifications and reference, and need not be advertised in advance.

Tier two

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 and national press and in appropriate trade and professional journals. The publications used must be available throughout the EEA;

• 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. Before employing an asylum seeker an employer should ensure that their official documentation has been stamped showing permission to work.

An employer has a defence against prosecution if they check that the potential employee is in possession of one or more of a range of documents. Acceptable documents include:

• a passport confirming the person is a British citizen;

• a passport or identity card of a EEA National or which otherwise shows entitlement to live and work in the UK;

• a birth certificate from the UK;

• an application registration card issued by the Home Office to an asylum seeker stating that the holder is permitted to take employment.

Further guidance is contained in the Home Office booklet Prevention of Illegal Working - Guidance for Employers. A defence is not available if the employer had actual knowledge that it would be an offence to employ the individual concerned.

You should keep the copy document while the employee is working for you and for at least three years after he has left your employment.

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. 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. The court will set the fine taking account of the seriousness of a particular offence and circumstances of the employer. It may take account of previous convictions in deciding the seriousness of the current offence.

Jonathan Exten-Wright is a partner and Sarah Hellewell is a professional support lawyer in the employment department of DLA Piper.