Immigration rules

Open-access content Monday 28th July 2008

Employing illegal workers has always been a risk for the FM sector and new legislation is putting even greater pressure on employers to check the status of their employees

by Sarah Maddock

10 July 2008

Do you really know your employees and colleagues? Could you say, for certain, whether your employees have the right to work in the UK? Under the Immigration, Asylum and Nationality Act 2006, which came into force on 29 February 2008, employers are required to know the answer to these questions with certainty if they want to avoid large fines and imprisonment. Suddenly, that story about Fred in IT's parents living in Peru when he was born, gets interesting

The sanctions

There is nothing new about the unlawfulness of illegal working. We have all heard news about large numbers of illegal workers entering the country. What is new is the much greater emphasis on employers policing their own employees, and employers being as 'guilty' and liable to sanctions as their illegal workers.

Employers which unlawfully employ, on or after 29 February 2008, an individual that does not have permission to work in the UK risk the following:

a civil penalty. An employer that negligently employs someone who is not entitled to work in the UK may be fined up to £10,000 in respect of each illegally-employed employee
a criminal offence. An employer who knowingly employs someone who is not entitled to work in the UK will commit a criminal offence, with a penalty of a prison sentence of up to two years and / or an unlimited fine

In determining the amount of the fine, the Border and Immigration Agency (BIA) will take into account a number of factors, including:

the number of previous offences (if any)
to what extent the employer had complied with the check requirements
whether the employer had reported any concerns to the BIA that the individual might be working illegally
to what extent the employer has cooperated with any BIA investigation

The defence

While the above sanctions may seem harsh, they can be avoided if the employer can establish the 'statutory excuse'. The 'statutory excuse' will be available if the employer has checked certain original documents before employing an individual. Which documents need to be checked will depend on the individual's circumstances, and are set out in List A and List B, in appendix 1 of the BIA's Civil Penalties Code of Practice which can be found on the BIA's website: www.bia.homeoffice.gov.uk.

A word of warning: there will be no defence available if an employer knows that an employee is working illegally, regardless of what checks have been undertaken.

If the individual is not subject to immigration control or has no restrictions on their stay in the UK, they should have documents in List A. For most employees, this will be their full UK passport.

If the individual's right to enter or stay in the UK is limited in time, they will only have documents in List B. If the employer checks and takes copies of a document, or documents, in List B, then the employee must be re-checked every 12 months. This is an ongoing obligation and will be relevant if, for example, an employee is a student employed on a temporary work placement.

The checks

The BIA recognises that employers cannot be expected to be experts on forgeries. As long as an employer has undertaken reasonable, basic, visual checks on the validity of a document, then this should be sufficient. There is no need to invest in lie detectors or x-ray machines. It will be important to retain copy documents throughout the employee's employment and for at least two years after employment terminates.

But what about employees employed before 29 February 2008? The required checks are those that were in place when the employee was employed. Before 1997, no identification checks were required. The BIA's website sets out the various checking obligations that have been brought in since 1997. But note that the new penalties apply to all staff illegally employed, regardless of when they started work.

Sarah Maddock is the professional support lawyer and Tim Woodward is a partner at law firm Bevan Brittan