On the 29th February 2008 sections of the
Immigration, Asylum and Nationality Act 2006 came in to force.
Overnight the government’s ability to crack down on those employers
who employ individuals who are not allowed to work in the UK
increased dramatically. So too the consequences for employers found
to have infringed the legislation!
In 2006 there were 591,000 migrants to the UK. It is estimated that
in any one year there are approximately 500,000 illegal immigrants
in the UK. Clearly there is a chance you could employ, or are
employing one of them.
Since the new law came into force it is reported that there have
been 137 employers caught in breach of the legislation generating
civil penalties of in excess of £500,00. The number caught already
is 10 times greater than the whole of 2007.
Only a week ago, officers from the UK Border Agency raided a chicken
factory in Derbyshire and found that 22 of the 56 workers were
working illegally. The employer now faces a possible criminal
prosecution and most definitely a civil prosecution.
Gone are the days of employing individuals without first
establishing their identity!
Pre 29th February 2008
Previous legislation provided that it was an offence to employ
someone over 16 who was subject to immigration control if they did
not have permission to work in the UK. There was a statutory defence
provided the Employer had obtained and copied certain documents from
employees before they started work.
The penalty for a breach was £5000.
Post 29th February 2008
It is now a criminal offence to “knowingly” employ an adult subject
to immigration control who does not have permission to work in the
UK or who is in breach of his working immigration conditions.
The penalty is a prison sentence of up to 2 years and or an
A body corporate will be treated as knowing a fact about an employee
if a person who has responsibility for an aspect of the employment
knows the fact. A body corporate can be held liable for the offence
but so too can directors, company secretaries and managers. HR
managers/directors or owner managed businesses, I’m afraid, are in
the firing line.
Where a criminal prosecution cannot be sustained then a civil
prosecution may be pursued. There is a new civil offence which makes
it an offence to employ an individual who is subject to immigration
control who does not have permission to work in the UK or who is
working in breach of restrictions imposed.
The penalty is a fine of up to £10,000 for each breach. That is
£220,000 for the Chicken Factory owner, assuming he is lucky enough
to escape criminal liability.
There is a statutory defence for a civil prosecution, similar to
before, for those employers who can show they complied with the
prescribed documentation checks. This requires an employer to check
and copy one or more of a specified combination of original
documents from either List A or List B.
If an employee is not subject to immigration control or who has no
restrictions on their stay in the UK then they should be in a
position to produce documentation from List A. This includes
passports/national ID cards from the UK and members of the European
Economic Area (EEA) (19 countries plus Switzerland).
In addition to these countries are a further 8 countries known as A8
countries who became members of the EEA in 2004. The nationals from
A8 countries are also free to come and live and work in the UK
freely. However these nationals are subject to the requirement to
register with the Workers Registration Scheme which the government
is using to monitor the influx of working migrants from these
countries. Poland and the Czech Republic fall within the A8
countries. It is a criminal offence (fine of £5000) to continue to
employ a non exempt national from an A8 country without their
application to the Work Registration Scheme or their certificate of
registration. Note that a worker from an A8 country can commence
work but must apply for registration within one month. You need
evidence that they have done this or that a certificate has already
Bulgaria and Romania joined the EEA in 2007. They are known as A2
countries. Workers from here are likely to be subject to worker
authorisation requirements and therefore they should hold an
authorisation document authorising them to work. You must obtain a
copy of this before they commence work for you. It is a criminal
offence to employ a non exempt A2 national (fine £5000).
For workers who are subject to immigration control or who have time
restriction on their stay in the UK they will be required to provide
one or more of the documents from List B. Any time restrictions
should be noted and repeat document checks carried out before the
time restriction expires and at least annually.
Detailed information as to the checks you need to perform can be
Cleary the consequences of failing to establish the identity of the
person you are employing could be very costly and damaging to your
business. It is imperative that you put in place vetting procedures
within the recruitment process which:-
- Identifies their nationality
- Require individuals to provide original ID documents from
List A or B
- Take correct copies of documents provided
- Cross refer information provided to ensure information
- Carry out checks with the UK Border Agency if unsure as to
the authenticity of documents provided
You cannot assume that an individual is of a particular
nationality on appearance or accent alone. To do so may mean you are
adopting unlawful discriminatory practises. It is therefore
appropriate to request the above documents for all prospective
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As one restaurant owner found out, the provision of a national
insurance number and a P45 from previous employer was insufficient
to satisfy the prescribed document checks. Photo driving licences
are not acceptable either.
For those businesses on the verge of inheriting staff through a
business purchase, a due diligence exercise is critical to identify
any risks in this regard. Civil liability will transfer under the
Transfer regulations and it is necessary to seek indemnities for
civil fines for breaches up to the date of transfer. Further ongoing
liabilities will arise if you continue to employ illegal workers
following transfer and so the checks above need to be carried out
urgently. A grace period of 28 days is given to any business
acquiring staff under the Transfer regulations to carry out the
Finally, if you suspect that you maybe employing an illegal
immigrant worker then you would be well advised to establish their
identity and nationality to determine whether this is the case. If
your suspicions turn out to be correct you must take necessary
action to terminate employment immediately, otherwise you are
committing a criminal offence of knowingly employing an illegal
worker. If the worker fails to co-operate then it maybe appropriate
to consider disciplinary action. Reporting your suspicion to the UK
Border Agency may also be advisable. Whilst there is a real risk you
could face prosecution for not having performed the document checks
before employment commenced there will be a reduction in any civil
penalty for having reported it to the UK Border Agency before any
visit they made.
Take legal advice before you terminate the workers employment and
before you report the matter to the UK Border Agency.