The recent case of attorney general Baroness Scotland (pictured), who inadvertently employed an illegal immigrant as her housekeeper, highlights the restrictions and potential pitfalls of employing migrant workers. This impacts all businesses but there are practical steps that should be taken to ensure HR practices comply with the requirements.
The UK government has also recently announced tightening of the rules to ensure that British workers are first in line for skilled jobs in the UK.
Since the introduction of the points-based immigration system in the UK in 2008, many employers have registered as licensed sponsors so they are able to employ skilled foreign workers under Tier 2 of the system. Tier 2 replaces the old work permit arrangements and places additional obligations on employers to play their part and prevent abuses of the UK immigration system.
To qualify under Tier 2, a migrant must score points across three categories: qualifications at NVQ level 3 or above, prospective earnings in the UK, and the type of job offer. The different types of job offer are intra-company transfers from an overseas group company; where the job has been advertised and there are no suitably qualified UK resident workers who are able to fill the role, known as the resident labour market test; and where the role is on the UK Border Agency’s published list of shortage occupations.
The government has recently announced measures that will be introduced in 2010 to tighten up rules on employing skilled foreign workers under Tier 2. The government’s stated intention is to ensure that British workers are not only first in line for these jobs, but also have longer to apply. This will mean that under the resident labour market test, jobs will have to be advertised in Jobcentre Plus, and at least one other medium, for four weeks (currently one to two weeks).
Also, the minimum prospective annual salary to score the requisite points will rise from £17,000 to £20,000, and overseas workers who want to take advantage of the intra-company transfer provisions must have worked for the overseas company for a year, rather than the current six-month requirement.
Any individual entering the UK or working in a role without the required permission will be committing an immigration offence. Illegal working covers those without permission to live in the UK, those who do not have the right to undertake the work in question, those who exceed any stipulated limitations on them working, and those whose visas have expired.
The consequences for any employer engaging such an individual can range from civil penalties imposed on the employer through to fines and imprisonment for senior managers and directors under the criminal justice system.
Employers that have registered as licensed sponsors will also risk their sponsorship rating being downgraded or their licence being cancelled altogether. The UK Border Agency also issues press releases highlighting recent enforcement actions and lists on their website and details of ‘named and shamed’ employers that have been caught employing illegal migrant workers.
Civil penalties imposed by the UK Border Agency can be up to £10,000 per illegal worker. The civil penalty can be reduced where the employer has already reported the illegal worker to the UK Border Agency and also co-operates with the enforcement action taken.
Employers can establish a statutory excuse against payment of a civil penalty by undertaking checks of specified original documents provided by prospective employees that prove their entitlement to work in the UK. These checks must be made prior to the start of employment and must be repeated at least every 12 months for employees who only have limited rights to work in the UK.
The type of documents that prospective employees will be able to produce will depend on the person’s nationality and their UK immigration status. There is no protection if the employer knew that the individual was working illegally, and this would also amount to a criminal offence.
In light of the pitfalls in relation to immigration checks and illegal working, it is sensible for all employers to have a robust immigration policy in place.
A sound immigrant worker policy should incorporate some key points. These must include treating all job candidates equally on the basis of their capability. This should prevent allegations of discrimination based on race or religion and belief, due to immigration status. Also, the employer is committed to employing only those people who have a legal right to live and work in the UK and for that employer.
Employees are expected to proactively manage their UK immigration status and advise the employer in good time of the expiry dates of their visa stamp/UK residence permit and, where applicable, take appropriate steps to extend their rights to live and work in the UK.
They are also required to co-operate fully with document checks and produce original, valid documentation evidencing their entitlement to take up the position before the commencement of their employment. If employees have limited leave to remain in the UK, they must produce documents promptly on request, and at least once every 12 months, providing proof of their continued right to remain in the role.
The employer must also reserve the right to carry out immigration status checks from time to time and staff are required to co-operate with any resulting enquiries and requests for documents. Staff who fail to comply with the immigration policy or that fail to provide the employer with satisfactory evidence of their entitlement to work on request may be subject to disciplinary action and/or have their employment terminated with immediate effect.
To obtain the benefit of a statutory excuse, employers should adopt standard recruitment processes. They must ensure all offers of employment are expressly subject to the prospective employee being able to evidence their right to work legally in the UK and in the specific role. This should be specifically referred to in offer letters. If the individual cannot provide satisfactory evidence, the offer of employment should be withdrawn.
Employers should carry out the required document checks before commencement of employment and not leave it until the first day at work. To that end, individuals should be asked to provide one or more of the documents prescribed by the government as evidencing their right to work in the UK.
Most passports will confirm whether a person has permission to work in the UK for the duration of the employment, but there are lists of other appropriate documents (and combination of documents) on the UK Border Agency’s website (www.ukba.homeoffice.gov.uk). These documents are divided into two groups – List A and List B – and there are examples on the website showing what these documents should look like.
Individuals who can provide documents in List A are not subject to UK immigration control and the employer will not be required to make any further document checks for the duration of their employment. However, where individuals produce documents from List B, the employer will be required to carry out repeat checks at least every 12 months until either the employee can provide documentation from List A, or the employee leaves employment.
Michael Bradshaw, partner, and Nicola McMahon, solicitor, Charles Russell
Model immigration contract clause
It is a fundamental term that employees have permission under UK immigration law to undertake this employment and, where applicable, that they have and continue to hold valid and appropriate UK immigration clearance or leave to remain.
Employees must produce original documentation evidence of the right to undertake this employment prior to commencing it. You will be informed by HR in advance of commencing employment of those documents that are acceptable.
Please note that should an employee fail to produce these documents or should he/she for whatever reason have his/her immigration clearance revoked, the employer reserves the right to terminate the contract of employment.
When carrying out document checks, employers should:
- Ensure they have seen original documents
- Satisfy themselves that the document appears valid and genuine
- Check photographs are consistent with the person’s appearance
- Check dates of birth are consistent across documents, and that they correspond with the person’s appearance
- Check that the expiry dates of the documents have not passed
- Check any endorsements in the documents to ensure the person is entitled to do the type of work offered
- Satisfy themselves that the documents are genuine, have not been tampered with, and belong to the person
- If there are any discrepancies – for example, a change of name – ensure they are accompanied by relevant documents, such as a marriage certificate or divorce decree absolute
- Take photocopies or scans of each document provided and store in non-rewritable format. For passports, this should include the front cover, personal details page(s), and any page containing UK government endorsements relating to working in the UK. Other documents should be copied in full
- Retain copy documents throughout the individual’s employment and for two years afterwards.
Key policy points
- It will be a matter of gross misconduct if an employee is found to have provided fraudulent documentation or to have deceived the employer as to their immigration status.
- If any employees have legitimate cause to question the validity of another employee’s immigration status, they are encouraged to inform the employer of this and the grounds for their concern.
- Employees must immediately advise the employer of any change in their personal circumstances that may affect their UK immigration status.
- For employers that are registered as licensed sponsors, their sponsored employees must immediately advise the employer of any changes to their contact details.