Q&A: Immigration and directors’ criminal liability

Since
1997, it has been a criminal offence to employ a person who does not have
permission to live in and/or work in the UK. Moreover, it is not only the
company who is liable in these cases, but directors, managers and other
officers of the company. Janvi Patel answers some common questions 

The
current fine for employing such a person who does not have permission to live
in and/or work in the UK is up to £5,000.

If
a director is held to be liable, the consequence is far more serious as they
are likely to lose their right to be a statutory director as a result of any
criminal conviction.

It
is therefore essential that companies follow the correct procedures so that
they adequately defend themselves, their officers and relevant staff against
any such claims.

Is
it OK to ask about permission to work on a recruitment form?

It
is important to be clear from the beginning. The recruitment application form
should ask whether the applicant has permission to work and/or be in the UK.
However, a person’s immigration status should not form the basis of a decision
as to whether or not to employ them, as that could lead to the company falling
foul of discrimination laws (see below).

How
much proof do I need that an applicant has permission to live/work in the UK?

The
employer needs to see one of a range of specific documents, which they must
believe, relate to that individual. For the defence to apply it is not
essential that the company has actual proof the document belongs to the person,
as long as it would not be unreasonable to assume it belongs to that person.

Are
there any special categories to look out for?

In
some instances, people are allowed to enter and work in the UK, but the number
of hours they are permitted to work is limited. Companies who allow workers to
exceed these hours are in breach of the immigration rules, and therefore risk
liability.

a)
Students:
Since June 1999, international students over the age of 16, who
are not nationals of the EEA and who have in their passports a stamp
prohibiting them from working "without the consent of the Secretary of
State", are no longer required to obtain that permission on an individual
basis. This means that such students are now free to work. However, they are
subject to the following:

They should not work for more than 20
hours per week during term time, except where the placement is a necessary part
of their studies and is undertaken with the agreement of their education
institution.

Students should not pursue a career by
filling a permanent full-time vacancy (full-time being 25 hours or more). This
does not apply to students on short courses of six months or less, who are
granted leave on conditions prohibiting employment. 

b)
Full working holidaymakers:
Commonwealth citizens aged 17 to 27 can come to
the UK for up to two years as working holidaymakers, taking-up employment which
is incidental to their holiday. This is normally taken to be work that is
part-time or casual.

Full-time
work on a casual basis is only allowed if it is for no more than half of the
working holidaymaker’s stay. If the company wishes to employ a working
holidaymaker it is essential to make sure their employment does not break these
conditions.

c)
Asylum seekers:
A person who has applied for asylum in the UK can ask the
Home Office for permission to work if the application has been outstanding for
at least six months. The standard acknowledgement letter, which is issued to
asylum seekers, will be endorsed on the reverse if permission to work is
granted. The person then has permission to work for any employer until the
application, including any appeal, has been decided. If the application for
asylum is successful or if it is decided for any other reason to let person
remain in the UK, they will continue to be able to work.

We
use recruitment agencies. Are they liable instead of us?

If
the recruitment agency searches for staff on behalf of the company, the company
rather than the agency is liable. If the company uses temporary workers
employed by the agency, the company would not be liable. However, the company
could become liable if such temporary workers were to become employees of the
company.

What
if we acquired staff as the result of a Tupe transfer?

The
company is not expected to make checks on individuals who become employees of
the company following a Tupe transfer. Therefore the company, and other
relevant staff, would not be prosecuted if it came to light that individuals
were working without permission.

What
if an applicant cannot produce any of the specified documents?

The
specified documents are the only ones which can establish a defence. If someone
cannot produce one of the documents you should not employ them, as you will
have no protection against a possible conviction if it turns out that they are
not entitled to work.

Would
it be sufficient to obtain proof only from an applicant who does not look
‘British’?

It
is imperative that in complying with immigration regulations the company does
not fall foul of discrimination law. It is therefore essential the company does
not assume a foreign national or someone from an ethnic minority has no right
to work in the UK. The best way for the company to avoid all of these pitfalls
is to undertake the above procedures for all employees or potential employees.

Do
we need to keep the original documents?

The
company should keep a full copy of the documents. In terms of a passport, the
company should have a copy of the front cover and any pages giving personal
details and those bearing a photograph or signature of the holder. The page
showing the stamp/endorsement, which confirms the holder of the passport is
currently permitted to work, must also be copied. 

What
happens if the permit has a time limit?

Occasionally
a person’s permission to live and work in the UK will expire on a certain date,
while their employment continues. If this is the case, it is important to
establish administrative procedures to remind the relevant person in the
company of the expiry date.  

Above
all, a company must ensure that in complying with certain procedures to protect
the itself from criminal liability, it does not fall foul of discrimination
laws by incorrectly assuming that anyone from an ethnic minority is not
authorised to work and/or be in the UK.

Janvi Patel is a solicitor in the Employment and Pensions
Unit at Charles Russell. For further information, please contact Janvi on 020
7203 5045

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