Immigration fines for employing illegal workers by way of the Civil Penalty regime have seen employer’s fines increase, both in number and value, since their introduction in 2008. Tijen Ahmet, a solicitor at SA Law, offers ten tips for avoiding a fine.
Today, employers can be fined up to £20,000 per employee found to be working without permission and immigration enforcement teams are carrying out more raids and unannounced visits.
The Government’s message is a clear. They will not hesitate to take action against an employer who fails to carry out appropriate right to work checks. However, the complexity of the rules means that employers and, in particular, HR practitioners are still uncertain of what is required of them. It frequently falls to the HR function during the recruitment process to carry out checks on all prospective employees and ensure compliance for the duration of their employment.
Employing foreign nationals
A common problem is when employing staff whose immigration status is unclear, such as international students who have restrictions on their employment. Some students are allowed to work in the UK, but their work activity will vary depending on their visa and whether work is done outside of term time. A high-profile case was Tesco, when the company was fined £115,000 for employing foreign students who were found to be working for longer than their visas allowed them to.
Last summer it was announced that restaurants and pubs will face instant closure if they employ staff illegally, and the Immigration Minister announced that employers who employ illegal workers in care homes, building sites and cleaning services will be targeted as part of the crackdown on illegal working in the UK.
Here are 10 useful tips to prevent your business from having a civil penalty imposed, or to assist you in challenging a decision made against you.
- Ensure that your right to work policy is updated and this is reflected in your HR systems. Specify in writing to the prospective employee that your offer of employment is conditional on them having the correct right to work documents to present to you.
- Complete your right to work check before employment. If a prospective employee fails to present their documents prior to, or on, their first day of employment, you must delay their start date until such evidence is provided.
- Check the original documents in the presence of the holder. Do not accept copy documents and be cautious of delay tactics by a prospective employee. If documents are not presented, employment should not commence.
- All documents produced, eg passports and visa copies, must be on the acceptable documents checklist, known as List A and List B, published on the government website. Do not accept any other documentation. When you are completing a check, be certain that the prospective employee does have a right to work by checking their visa status. If you have any doubt, consult with an immigration expert.
- Copy all visa pages in passports plus the photographic page and/or both sides of the Biometric Residence Card that is presented to you. All Biometric Residence Cards should specify whether or not work is permitted. Be mindful of restrictions related to students.
- Sign and date the document to confirm when your right to work check is complete. If you do not specify a date on the document copy, you should record the date of your check in a form that can be clearly identifiable by the Home Office, if requested.
- Keep records of all documentation for the duration of the individual’s employment. This is what will give you a statutory excuse and a defence to challenge if faced with a penalty.
- Track and monitor visa expiry dates and request an employee’s updated document where there is a time limit. It is good practice to request an updated document at least three months before expiry to give you a head start on the process. If an employee cannot provide an updated document, you must not continue to employ them.
- Take advantage of the Home Office Employer Checking Service if your employee has a pending application or appeal against an immigration application decision. Be aware that you can only complete this process if you have a case identification number provided by the employee.
- If you suspect an employee is working illegally or has provided you with a false document or a genuine document that does not belong to them, you should contact the Sponsorship, Employer and Education Helpline to report the incident. If you do not employ the person and you report this incident, you will not be liable for a civil penalty.