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Do you know who you are employing?

» Posted on: 16 May 2008
» Posted by: Oliver McCann
» Service area: Employment

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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 unlimited fine.

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.

Document Checks
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 been granted.

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 found at www.ukba.homeoffice.gov.uk/

Best Practise
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:-

  1. Identifies their nationality
  2. Require individuals to provide original ID documents from List A or B
  3. Take correct copies of documents provided
  4. Cross refer information provided to ensure information tallies up
  5. 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 employees.

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 necessary checks.

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.

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