Employing illegal workers – the new changes

John
McMullen answers your questions on the new rules on document checking under the
Asylum and Immigration Act 1996, in force from 1 May

Q
What are my basic obligations to carry out checks on prospective workers?

A
Section 8 of the Asylum and Immigration Act 1996 requires all employers in the
UK to make basic document checks on people they intend to employ.

Where
a worker is not allowed to take employment in the UK, an employing employer
commits an offence under the Act unless he has carried out document checks.  

It
is the nature of these document checks, which provide the employer’s defence,
that are to change.

Q
What documents will I now need to check?  

A
The Immigration (Restrictions on Employment) Order 2004 (SI No 755/2005)
introduces two types of documents that an employer has to check to obtain the
defence to an offence under section 8.

Employers
can check and copy one of the original documents included in ‘List 1’ or check
and copy a combination of two original documents specified in ‘List 2’.  (List 1 and list 2 are two parts to a
schedule in the 2004 order).

List
1 documents include


a UK passport


an EEA passport or national identity card


a UK residence permit issued by the Home Office


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

List
2 documents (and here the employer must check two documents from the list)
include


an official document bearing a national insurance number…

            along with…

            • a birth certificate, or

            • a letter from the Home Office, or

            • an immigration status document


a work permit…

            along with…

            • a passport, or

            • a letter from the Home Office

            In either case , these must confirm
the holder has permission      to enter or
remain in the UK and take the work permit  
           employment in question.  

Q
How thorough must the check be?

A
The employer must see the original of any document, take a photocopy and be
satisfied (for example by checking dates of birth or the photograph) that it
relates to the individual in question.

Q
What about the new EU States that are acceding to the EU on 1st May?

A
Ten new countries will join the EU and become part of the EEA on 1 May.


Cyprus


Czech Republic


Estonia


Hungary


Latvia


Lithuania


Malta


Poland


Slovakia


Slovenia.

Nationals
from all 10 of these countries are free to come and work in the UK from 1 May
2004.

An
employer will need to ensure that a person from these countries (apart from
Cyprus or Malta) registers with the Home Office.

In
addition to ensuring that the worker registers with the Home Office employers
should check that the worker is a national from one of the countries concerned
by asking them to produce a national passport or national identity card.

Q
Are there any other ramifications of the checking requirements under the Asylum
and Immigration Act 1986?

A
The Act also obliges employers to ensure that their recruitment practices do
not discriminate against individuals on racial grounds. This means that all job
applicants must be treated in the same way. Operating a discriminatory
recruitment process could make an employer liable to prosecution under the Race
Relations 1976 with an unlimited fine.  

A
Code of Practice was issued in 1999 to help employers follow section 8 without
discriminating against individuals on the basis of their race.

Q
Is there any further help I can obtain in applying these new rules?

A
The Immigration (Restrictions from Employment) Order 2004 is available from:

www.homeoffice.gov.uk/docs3/si2004_755.pdf

Draft
Home Office guidance on the new rules is available from:

www.ind.homeoffice.gov.uk/filestores/final_version_A5_guidance.pdf

An
employer’s helpline is available on 0845 010 6677 and the Code of Practice on
avoiding racial discrimination in applying section 8 can be downloaded from
www.ind.homeoffice.gov.uk

John
McMullen is head of international employment law at Pinsents

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