Dealing with illegal workers: how much responsibility should fall on employers?

Government proposals to increase penalties for employing workers illegally, and requiring employers to carry out more frequent checks, have had a mixed response.

Some claim the new proposals impose an unfair burden on businesses. However, in a climate of tougher security, most employers acknowledge they should bear some responsibility for ensuring their workers have the right to work in the UK and want to avoid negative publicity that may arise if they employ illegal workers. Yet no employer is likely to want to take on the role of policing UK immigration.

Question of cost

The real questions are, therefore, how much responsibility should be passed on to employers and what should the Border and Immigration Agency do to help them?

A key concern about the new proposals is the cost, both financially and in terms of management time. The Home Office estimates it will cost more than £27m for businesses to acquaint themselves with the new law. The government must ensure the guidance notes are as clear and concise as possible to reduce this cost.

It can be difficult for employers to know which documents need to be checked and copied, and in some cases staff may not have the required documents. Compulsory identity cards for both British and overseas nationals would make it far simpler for employers to carry out these checks.

There are currently dozens of different ways for overseas nationals to come to the UK, and endorsements in passports are confusing. This needs to be changed when the points-based system is introduced. Endorsements should clearly state whether a person may work in the UK and if there are any limitations on their hours or the company they may work for.

Detecting forgeries

Another concern, raised by one employer at a lunch held by the CBI and Stevens & Bolton to discuss the Home Office consultation paper, is the difficulty detecting forged documents. Employers called for better training from the Home Office. One employer also mentioned that when it informed the Home Office that it had seen forged documents, the Home Office did not have the resources to follow up on this.

This left a number of employers cynical about the point of carrying out these checks. If the new legislation is to be effective, there will need to be additional procedures and funding in place to enable the Home Office to take action once employers detect something is amiss.

Employers were also worried about the interaction between the requirement to check someone has the right to work in the UK and race discrimination legislation.

Provided employers carry out checks on all employees at the same time, the chances of a successful claim are slim. However, difficulties arise when an employee has an application pending at the Home Office. How does an employer check this and how does it know when a decision has been reached? If it acts too hastily and dismisses the employee, the employer may end up before an employment tribunal, but if it gives the employee the benefit of the doubt, it risks being fined under the new proposals.

As part of the shake-up of immigration law, it is vital employers are kept involved in the immigration process and can contact the Home Office to obtain information by way of an improved help­line offering prompt, accurate and specific advice.

Provided the Home Office considers these wider issues, it has an ideal opportunity to tighten up the current law and provide better support to employers, and thus enable employers to work in partnership with the Home Office to reduce the number of people working illegally in the UK.

Key proposals

  • On-the-spot civil penalty fines for employing illegal staff
  • New criminal offence of knowingly employing illegal staff
  • Annual checks if workers have limited leave to remain
  • Under the new points-based scheme, employers will act as sponsors and be responsible for ensuring workers comply with immigration law, do not breach their conditions of stay, and return home at the end of their stay. If sponsors do not act responsibly, they may be downgraded or removed from the sponsorship register.

By Kerry Garcia, senior associate, employment and immigration team, Stevens & Bolton 

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