Section 8 of the Asylum and Immigration Act 1996, which currently sets out the law on prevention of illegal migrant working in the UK, will be repealed and replaced on 29 February 2008 by Sections 15 to 25 of the Immigration, Asylum and Nationality Act 2006.
Under the new law, employers who employ someone subject to immigration control aged 16 or older who is not entitled to undertake the work in question will be liable to pay a civil penalty. It will be a criminal offence to “knowingly” employ an illegal migrant.
The changes will apply to employees who start work on or after 29 February 2008.
Q Can I take someone on and carry out the checks afterwards, and then terminate their contract if I am not satisfied?
A No. Employers will have a statutory excuse against liability for payment of a civil penalty provided they check and copy certain original documents before the employment commences and do not knowingly employ an illegal migrant.
The most common document that a prospective employee will produce is a ‘secure’ document, such as a UK or European Economic Area (EEA) passport, a national ID card or a UK residence permit.
Otherwise, two verifying documents will be required from lists set out in the Home Office summary guidance from the Border & Immigration Agency. A p45 alone is insufficient. Comprehensive guidance is also available from the Home Office.
Employers who acquire staff as a result of a TUPE transfer will have 28 days following the date of transfer to undertake the appropriate document checks.
Q I have been provided with acceptable ID – what do I have to do next?
A Employers should take reasonable steps to satisfy themselves that their prospective employee is the rightful holder of any documents presented to them, that the documents allow the employee to do the type of work offered and that the documents are valid.
The documents must then be photocopied or scanned in their entirety, apart from passports and other travel documents where only the front cover and the pages giving personal details, including photograph, signature and any relevant endorsements, need be captured.
A record of everything copied or scanned must be kept.
Where the prospective employee has only limited leave to be in the UK, employers should repeat the checks at least once every 12 months until the employee can produce documents indicating that they can remain permanently in the UK.
Q Does the same apply to workers from the latest EU accession states?
A Employers must carry out the same standard checks for nationals of all the countries that joined the EEA on 1 May 2004 and 1 January 2007. For a national of the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Slovakia or Slovenia, employers should ensure that the prospective employee (subject to some exemptions) registers with the Border & Immigration Agency under the Worker Registration Scheme within one month of starting employment.
For a national of Bulgaria or Romania, employers should check and copy the prospective employee’s authorisation document (or any document establishing that the person is exempt) before their employment commences.
Q Suppose I get an application from John Smith, a white male with a NI number who states his nationality as British. Do I have to check to see if he is an illegal worker?
A To avoid a race discrimination claim, employers should not make assumptions based on names, race, colour, nationality, appearance or accent, and should treat all job applicants in the same way. Furthermore, immigration status is irrelevant. Employers need to satisfy themselves that the applicant has the right to work in the UK.
Q What will happen if I fail to carry out illegal worker checks?
A An employer who employs an illegal worker without carrying out all the necessary checks will be liable to a civil penalty of up to £10,000 for each person that they illegally employ. The actual penalty will be determined by a number of factors, including whether the employer has been issued with any penalties or warnings in the past 3 years.
Criminal conviction for knowingly employing an illegal worker will carry the potential of an unlimited fine and/or a prison sentence of up to 2 years for any consenting or conniving officer of the employer.
Employing nationals of the latest EU succession states without carrying out the required additional checks may result in a fine of up to £5,000 on conviction.
Q Where can I find out more information on this subject?
A The Home Office has produced summary guidance and comprehensive guidance on preventing illegal working, which is available on the Home Office website.
The Home Office has also issued two codes of practice to help employers comply with this legislation without inadvertently discriminating against individuals on the basis of their race, ethnicity or religion, and to set out the factors that will be considered when determining the level of any civil penalty to be imposed.
There is also a leaflet on what employers need to know regarding the new measures on preventing illegal working.
Charlotte Hughes Scholes, associate, Bristows
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