SUMMARY: The Immigration Minister has recently announced that businesses that employ illegal workers will be hit with the “full force of government machinery”. Therefore, employers would be wise to seek protection by making use of defences which are potentially available. In this update we give 10 top tips to the employer who wants to ensure it has a defence.
Currently, an employer who is found to be illegally employing foreign nationals faces both civil and criminal penalties. The civil penalty for unknowingly employing a foreign national is up to £20,000 for each illegal worker. In the event the employer knowingly employs a migrant who does not have the right to work, that employer will be committing a criminal offence and the criminal penalty is a potential prison sentence and an unlimited fine.
Whilst there is no defence to the criminal offence, there is a possible defence to the civil offence. This defence, which is a statutory defence, relies on the employer showing that it has carried out the correct document checks – the 10 top tips relate to a statutory defence.
The 10 top tips:
1. Obtain proof of a prospective employee’s right to live and work in the UK before they commence employment.
If the checks are undertaken after the employee has commenced employment, the employer will not have the defence. All checks should be carried out consistently on all prospective employees (regardless of whether that employee is or appears to have the legal right to live and work in the UK) at the same stage, to avoid any discrimination argument.
2. Ensure that you are checking the correct documents in accordance with current Home Office guidance.
You can find an Employer’s Guide to Right to Work Checks on www.gov.uk which sets out the documents which must be checked. This guide is frequently updated (most recently, 12 May 2015) and so needs checking for updates on a regular basis.
3. Take particular care in relation to checking students’ documents.
Where a prospective employee is a student with permission to study they can only work for limited hours during term time. Make sure you obtain the appropriate evidence for this category of worker and you implement the appropriate systems to ensure they only work in accordance with their permission.
4. Check documents in the presence of the prospective employee.
This is because you are required to check that the documents:
- are genuine;
- are presented by and belong to the holder who is the prospective employee; and
- show that the prospective employee has the right to do the type of work you are offering.
Whilst the prospective employee can be present by live video link, you must have the original documents in front of you – you cannot check photocopies, faxes or images via video link.
5. Obtain supporting documents if there has been a change of name.
If names differ in the documents, you must identify the reason(s) for this difference. For example, the individual may have changed their name due to marriage or divorce, in which case you would need to obtain the original marriage certificate and/or the divorce decree absolute. You may need to obtain a deed poll document.
6. Make a copy of the documents you have checked.
You should make and retain a clear copy of the documents you have checked, and make a record of the date of the check.
For passports, copy pages with the document expiry date, the holder’s nationality, date of birth, signature, leave expiry date, biometric details, photograph and any page containing information indicating the holder has an entitlement to enter or remain in the UK and undertake the work in question.
For all other documents, you must copy the entire document.
Copied documents must be securely retained for not less than two years after the employment has come to an end.
7. Are follow-up checks required?
If the individual has a time limited permission to be in the UK and to do the work in question, diarise follow-up checks for the appropriate time – we generally recommend carrying out a check in good time before a permission expires so that there is time for the business to contingency plan if necessary.
Be aware that there are a number of positive obligations on employers with regard to follow-up checks for certain permissions.
8. Consider if you should use the Employer Checking Service.
This service (which can be accessed at https://www.immigrationstatuscheck.service.gov.uk/employers/) should be used if an employee:
- cannot show you their documents. This could be because they have an outstanding appeal or application with the Home Office;
- has an Application Registration Card; or
- has a Certificate of Application.
9. Always obtain the individual’s consent before using the Employer Checking Service.
The employee must first give their consent before you use the Employer Checking Service. It is acceptable for consent to be given either verbally or in writing, however, we advise that it is obtained in writing in case of future challenge.
10. Everything changes…
…regularly! In the past few years the Immigration Rules have changed – the changes have impacted on the documents to be checked as well as the checking process itself. It is likely that there will be further changes with this being such a politically hot topic. We therefore advise that each time you deal with an individual’s legal right to work you ensure that you are complying with the then applicable legislation requirements.
Please do be aware that these top tips are not a comprehensive guidance on the steps to be taken for those employers wishing to avail themselves of the statutory defence. We offer a full immigration service, which covers all aspects of this thorny area of the law (including sponsorship licences and visa applications) and will be happy to provide full guidance on the statutory defence as well as any other right to work/immigration queries that you have. For more information about this service, please contact:
+44 (0)808 172 93 22
This update is for general guidance only and does not constitute definitive advice.