Employees’ right to work in the UK

Do you ask all new employees before they join you to provide evidence of their right to work in the UK, and keep copies of their documentation regardless of their appearance or accent? Do you know what documents you should be looking at and copying?

If you answer “no” to either of these questions, your company could face a fine of up to £5,000 for each illegal worker you are found to employ. You could also risk claims for race discrimination if your requests for information are not objective.

Who is at risk?

The company and its directors, managers or other officers of the company, who in future may also risk imprisonment and/or a fine if the illegal employment occurred with their consent or connivance, or as a result of their negligence.

What are our potential liabilities?

It is a criminal offence to employ a person aged 16 or over who has no right to work in the UK, or no right to do the work being offered. From a date to be confirmed in 2006, there will also be a civil penalty (up to £2,000 as an on-the-spot ‘fine’) for employing a person who has no right to work in the UK, or whose right to work is invalid or has expired. Since April 2004 there have been 10 convictions.

How can we avoid liability?

Before all employees commence employment with you (regardless of gender, appearance or accent)
undertake basic document checks. Also, check that the documents offered relate to the employee who produces them (for example, check they are consistent with the age and appearance of the employee). Check expiry dates, and that any immigration stamps permit the kind of work being offered, and retain copies of prescribed documents during the worker’s employment and for three years thereafter.

What documents need to be checked?

Since 1 May 2004, the list of approved documents includes a full UK or European Economic Area (EEA) passport, full British birth certificate and P45/P60, or work permit and passport endorsed with relevant leave to remain (simply obtaining a document bearing National Insurance details is now no longer enough). Nationals from eight of the 10 newest EU member states (Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Slovakia and Slovenia) must also produce a copy application form or registration certificate obtained under the Workers Registration Scheme within 30 days of commencing employment, or a residence permit.

Are we at risk of fines or penalties if employees are recruited through an agency or staff are supplied by an agency?

The Conduct of Employment Agencies and Employment Business Regulations 2003 require agencies to confirm the identity of a work seeker, their experience, training and qualifications before you recruit them. But the Home Office expects you as the employer to conduct the checks, to have the benefit of a defence. If an agency employs staff who provide their services to you, the Home Office advises you to audit the agency’s documentation checking procedures, and double-check yourself from time to time.

What if we haven’t done checks in the past?

Ensure you put in place a system for all new employees. If, prior to 1 May 2004, you requested, received and retained a copy of a document with an employee’s National Insurance number on it, you should have a defence to any prosecution (unless you are aware that they no longer have a right to work, or to do the work for which you employ them). Consider requesting documents from all employees recruited since, at least, May 2004.

Where can we get guidance?

The Home Office publishes a helpful booklet with copy passport stamps, which is available online. It also operates a helpline: 0845 010 6677.

Are there any changes in the pipeline?

The Immigration, Asylum and Nationality Act will come into effect on a date to be confirmed in 2006. Meanwhile, the government is consulting on the proposed changes to the work permit and immigration system (with a move towards point-based criteria).

Useful websites

(Illegal working guidance and copy stamps etc)
(avoiding race discrimination)
(work permits and fees)
(visa requirements)
(consultation document: Selective Admission: Making Migration Work for Britain)

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