Illegal workers

According to the Home Office, 600,000 workers have come to the UK from the new accession states of the European Union since 2004. Meanwhile, the Immigration, Asylum and Nationality Act 2006 sets out to tackle the number of illegal migrant workers by targeting their employers.

Q What is the current law?

A Under Section 8 of the Immigration and Asylum Act 1996, it is a criminal offence to employ a person in the UK who does not have a right to work here.

Q What is the current penalty for employing an illegal worker?

A Fines of up to £5,000 per illegal worker can be levied against employers as well as individuals responsible for recruitment in the organisation. From a practical perspective, the adverse publicity caused by the forced deportation of a number of illegal workers can be just as costly.

Q How can I comply with the legislation?

A Before recruiting any potential new employee, ask them to provide one of the original documents included in the Home Office’s List 1, or two of the original documents in the combinations given in List 2. Comprehensive lists of the prescribed documents in List 1 and List 2

To ensure they are the rightful holder of those documents, the employer should check:

  • any photographs to ensure they are consistent with the appearance of the potential employee
  • the dates of birth listed, once again making sure that they are consistent with the appearance of the potential employee
  • that any expiry dates have not passed
  • that any UK government stamps or endorsements permit the potential employee to do the type of work being offered, and
  • if the potential employee provides two documents from List 2 that have different names, request further documentary evidence, eg, a marriage certificate or adoption certificate.

Employers should copy the documents and retain them for the duration of the employment and for three years after termination.

Q What should I do if I discover that I am employing an illegal worker?

A If the employee is clearly an illegal worker, take steps to terminate their employment. However, extreme caution should be taken in dismissing an employee for failing to provide requested documentation without following the statutory dismissal procedures. If the employee does have the right to work in the UK, the employer is at risk of an automatic unfair dismissal claim with the potential of a 50% uplift in compensation.

Q What are the new rules for illegal workers?

A In April, the Immigration, Asylum and Nationality Act 2006 was passed. The Act repeals the Immigration and Asylum Act 1996 and introduces a new civil and criminal offence, stricter document checks and a code of practice.

Employers are required to make ongoing checks when, for example, employees need to extend their permission to remain. This is a significant departure from the current system. Employers must be much more vigilant and put in place proper systems to ensure that an employee does not slip through the net and expose them to liability.

Q What is the new civil and criminal offence?

A Section 15 permits immigration officers to issue penalty notices to employers of up to £2,000 per employee alleged to be working illegally. The fine will be payable within 28 days of the penalty notice, unless the employer objects to the amount or imposition of the penalty. It is likely that this will lead to more ‘on the spot’ fines.

The Act introduces the criminal offence of knowingly employing an illegal worker. It also expands the scope of corporate liability: the employer is treated as knowing that an employee cannot lawfully work, if a person who has responsibility within the organisation for “an aspect of the employment” knows that the employee does not have the right to work in the UK. If found guilty, individuals can face a term of imprisonment and/or a fine.

See the July/August issue of Employers’ Law (out now) to find out how to avoid employing illegal workers

Home Office code of practice

How to avoid discrimination

  • Treat all applicants the same way at each stage of the recruitment process.
  • Decide in advance when the documents will be required and be consistent.
  • Do not make assumptions based on racial grounds
  • Review the code of practice

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