Weighing up the risk of employing migrants

The announcement by the home secretary, John Reid, to restrict the employment of Romanian and Bulgarian workers looking to work in the UK, has led to some confusion in the press regarding the penalties for employers that break the ban. So what should employers wishing to recruit overseas workers be doing to ensure they are compliant?

Adverse comments

In 2004, when eight new countries joined the EU, UK employers were given full access to labour from those states, subject only to registration of these workers under the Worker Registration Scheme. There has, however, been adverse commentary on what has been perceived as the resulting influx of workers, and the ineffective nature of the registration scheme.

In response, the arrangements for Romanian and Bulgarian nationals are somewhat different.

Employers wishing to recruit Romanian or Bulgarian nationals will be able to do so only through one of the limited, sector-based schemes currently in operation, or through one of the existing immigration categories that permit individuals to work in the UK, such as the Work Permit or Highly Skilled Migrant schemes.

The bigger picture for employers, however, relates to employing individuals who do not have the legal right to work in the UK.

This issue is a priority for the government, as new legislation and initiatives demonstrate.

Although prosecutions of employers have been rare, this is likely to change under the Immigration and Asylum Act 2006. Employers that inadvertently employ an individual who does not have the right to work and have not carried out the appropriate checks – or worse, knowingly employ an illegal worker – can face imprisonment, or an on-the-spot fine of £2,000 per alleged illegal employee.

To support this new legislation, the number of enforcement operations (designed to identify and remove illegal workers) is set to increase. Our experience, as advisers to employers, shows an increasingly high incidence of unannounced visits from immigration officers on the suspicion that the business is employing illegal workers.

It is the legal obligation of the employer to make the time and facilities available to enable the immigration officer to conduct the enquiries, interview and, if necessary, to arrest the suspects. Apart from the legal implications, a swoop of this nature will, at best, result in operational disruption, and at worst, leave a large hole in the workforce – not to mention the damage to reputation that such adverse publicity can have.

Avoiding the problem

Given these potential threats, it is crucial that employers consistently carry out pre-employment checks, regardless of nationality and race.

Where an agency is used to supply labour, consider obtaining an agreement that it will carry out pre-employment checks and maintain records. This should include a right for the employer to complete random spot-checks to ensure the checks are taking place. If possible, seek an indemnity in respect of any losses that might be incurred.

Documentary evidence

Should employers get a visit from an immigration officer, it is important to ensure all documentation is in order.

The role of the employer is to co-operate and assist in the investigations, as there is a risk of prosecution for employing workers unlawfully and/or for facilitating a breach of the immigration law. Adopting a supportive and co-operative stance may well assist in this situation. Co-operation should apply even if the workers concerned are agency workers, as the employer could be prosecuted for aiding and abetting the employment of an illegal worker.

To help counteract potential adverse publicity, check with the immigration officer exactly what is required in terms of confidentiality, and explore the possibility of coming to an agreement that would allow time to make a press announcement as soon as possible after the completion of an investigation.

The increasing regulation associated with employing foreign workers can be a potential minefield for employers. But by ensuring the appropriate checks are carried out and by seeking the advice of legal advisers where necessary, employers can avoid the pitfalls.

By Audrey Elliott, head of immigration, Eversheds

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