• New Measures to Prevent  Illegal Employment in the United Kingdom

    The Immigration, Asylum and Nationality Act 2006 ("the Act") was passed on 30 March 2006 as part of the Government's five year strategy for asylum and immigration. The Act has strengthened the law on the prevention of illegal migrant working.  The new system comes in to force on 29 February 2008.   

    Employers have a responsibility to prevent illegal working in the United Kingdom.  The key provisions of the new legislation are:

    • a system of civil penalties for employing illegal migrant workers (Section 15);
    • a statutory "excuse", which will act to off-set this penalty; and
    • a separate criminal offence of knowingly employing an illegal migrant worker (Section 21). 

    Civil Penalty

    Employers who negligently hire illegal workers could be served with a notice requiring payment of up to a maximum penalty of £10,000.00.

    The level of the penalty to be imposed per worker may be increased or reduced according to different criteria, including:

    • The number of checks the employer conducted;
    • Whether the employer reported suspected illegal workers to the BIA;
    • Whether the employer co-operated with the BIA; and
    • The number of offences that the employer has committed in the past.

    Statutory Excuse

    Checking Documents - "3-Step Test"

    In order to establish a valid defence, it is necessary for the employer to examine certain immigration "status documents".

    Employers should implement a 3-Step Test for checking documents for every new employee they are employing.  Following a 3-Step test will amount to a Statutory excuse and ensure that employers are not convicted for unknowingly employing a person illegally.

     

     

    3-Step Test:

    1. Obtain a candidate's original documents

    2. Check the documents

    3. Save copies of the documents

    Employers must ensure that the above steps are carried out before a person starts employment. 

    Documentation

    The documents to be examined by employers are set out as List A and List B in Annex A and B, respectively. 

    For identity cards, passports and travel documents, a copy should be taken of:

    • The document's front cover; and
    • Any page containing the holder's personal details including nationality, his or her photograph, date of birth and / or signature; and
    • Any biometric details; and
    • The date of expiry; and
    • Any relevant UK immigration endorsements.

    Other documents should be copied in their entirety.

    List A includes only documents that can stand on their own and are less susceptible to fraud and misuse. The documents on List A are those that establish that there is no time limit to the employee's lawful residence in the UK.

    If reasonable steps are taken to check the validity of a document or documents from List A, the statutory excuse will have been established for the duration of the employment and no further checks will be required.

    By contrast, the documents on List B are those that establish that the employee has an existing right to reside and work in the UK, but not an indefinite basis. 

    Where an employee produces a document/combination of documents from List B, the employer must carry out a repeat check at least once every 12 months after the initial check in order to retain the excuse against a penalty.

    The repeat check will involve asking the employee to produce a valid original document, or documents again either from List A or List B, and making copies. If document(s) from List A are subsequently presented, the statutory excuse will have been established for the remainder of the employment and no further checks will be required.

    The statutory excuse is best established if the employer:

    • Takes reasonable steps to check the validity of the documents;
    • Keeps copies of the documents for at least two years after the employment terminates;
    • Satisfies itself that any photographs in the documents are of the prospective employee and are consistent with any date of any birth in the document;
    • Takes all reasonable steps to check that the prospective employee is the rightful owner of the document; and
    • Retains copies of the documents in a form that can not be subsequently altered.

    In all cases an employer is excused from paying a penalty only if prior to the commencement of employment the employee produced to him appropriate documents from List A or B.

    If a full check has been conducted, then the employer will be entitled to a statutory excuse and no penalty will be payable, even if illegal migrant workers are found to be working. Where the check is partial then the employer may be subject to a civil penalty, the level of which would be determined taking into account the circumstances of the case.  Where no check has been carried out the employer may be subject to the maximum penalty.

    Criminal Offence

    A criminal offence is committed where it can be proved that an employer knowingly employed an illegal migrant worker.  The Act also provides for personal liability on the part of corporate officers (e.g. director, manager, secretary) who have responsibility for the relevant aspect of the employment and have knowingly employed an illegal migrant worker.  An employer found guilty may be liable to a custodial sentence of up to two years and / or an unlimited fine.

    Avoiding Race Discrimination

    Under Section 4 of the Race Relations Act 1976 it is unlawful to discriminate in recruitment or employment on racial grounds.  Employers must not assume that someone from an ethnic minority is an immigrant or that someone born abroad is not entitled to work in the UK. 

    To assist employers, a code of practice, entitled "Guidance for Employers on the Avoidance of Unlawful Discrimination in Employment Practice While Seeking to Prevent Illegal Working" will come into force on 29 February 2008.

    How To Protect Yourselves:

    • Employers are best advised to ensure that the same checks are made on all new employees at the same time in the recruitment process, not just those that they suspect to be migrant workers;
    • Check documents before an employee starts work and make production of such documents (before and during employment) a condition of their employment;
    • Put in place a system of checking documents for all migrant workers every 12 months;
    • Keep good records!

    Further Advice

    This briefing briefly outlines increasing compliance obligations for employers under the new regime.  It is not exhaustive and individuals should seek specialist advice about any queries they may have.

     

    Magrath LLP

    January 2008

     

     

     

     

     

     

     

     

    Annex A

    List A

    1. A passport showing that the holder, or a person named in the passport as the child of the holder, is a British citizen or a citizen of the United Kingdom and Colonies having the right of abode in the United Kingdom.

    2. A passport or national identity card showing that the holder, or a person named in the passport as the child of the holder, is a national of the European Economic Area or Switzerland.

    3. A residence permit, registration certificate or document certifying or indicating permanent residence issued by the Home Office or the Border and Immigration Agency to a national of a European Economic Area country or Switzerland.

    4. A permanent residence card issued by the Home Office or the Border and Immigration Agency to the family member of a national of a European Economic Area country or Switzerland.

    5. A Biometric Immigration Document issued by the Border and Immigration Agency to the holder which indicates that the person named in it is allowed to stay indefinitely in the United Kingdom, or has no time limit on their stay in the United Kingdom.

    6. A passport or other travel document endorsed to show that the holder is exempt from immigration control, is allowed to stay indefinitely in the United Kingdom, has the right of abode in the United Kingdom, or has no time limit on their stay in the United Kingdom.

    7. An Immigration Status Document issued by the Home Office or the Border and Immigration Agency to the holder with an endorsement indicating that the person named in it is allowed to stay indefinitely in the United Kingdom or has no time limit on their stay in the United Kingdom, when produced in combination with an official document giving the person's permanent National Insurance Number and their name issued by a Government agency or a previous employer.

    8. A full birth certificate issued in the United Kingdom which includes the name(s) of at least one of the holder's parents, when produced in combination with an official document giving the person's permanent National Insurance Number and their name issued by a Government agency or a previous employer.

    9. A full adoption certificate issued in the United Kingdom which includes the name(s) of at least one of the holder's adoptive parents when produced in combination with an official document giving the person's permanent National Insurance Number and their name issued by a Government agency or a previous employer.

    10. A birth certificate issued in the Channel Islands, the Isle of Man or Ireland, when produced in combination with an official document giving the person's permanent National Insurance Number and their name issued by a Government agency or a previous employer.

    11. An adoption certificate issued in the Channel Islands, the Isle of Man or Ireland, when produced in combination with an official document giving the person's permanent National Insurance Number and their name issued by a Government agency or a previous employer.

    12. A certificate of registration or naturalisation as a British citizen, when produced in combination with an official document giving the person's permanent National Insurance Number and their name issued by a Government agency or a previous employer.

    13. A letter issued by the Home Office or the Border and Immigration Agency to the holder which indicates that the person named in it is allowed to stay indefinitely in the United Kingdom when produced in combination with an official document giving the person's permanent National Insurance Number and their name issued by a Government agency or a previous employer.

    Annex B

    List B

    1. A passport or travel document endorsed to show that the holder is allowed to stay in the United Kingdom and is allowed to do the type of work in question, provided that it does not require the issue of a work permit.

    2. A Biometric Immigration Document issued by the Border and Immigration Agency to the holder which indicates that the person named in it can stay in the United Kingdom and is allowed to do the work in

    question.

    3. A work permit or other approval to take employment issued by the Home Office or the Border and Immigration Agency when produced in combination with either a passport or another travel document endorsed to show the holder is allowed to stay in the United Kingdom and is allowed to do the work in question, or a letter issued by the Home Office or the Border and Immigration Agency to the holder or the employer or prospective employer confirming the same.

    4. A certificate of application issued by the Home Office or the Border and Immigration Agency to or for a family member of a national of a European Economic Area country or Switzerland stating that the holder is permitted to take employment which is less than 6 months old when produced in combination with evidence of verification by the Border and Immigration Agency Employer Checking Service.

    5. A residence card or document issued by the Home Office or the Border and Immigration Agency to a family member of a national of a European Economic Area country or Switzerland.

    6. An Application Registration Card issued by the Home Office or the Border and Immigration Agency stating that the holder is permitted to take employment, when produced in combination with evidence of verification by the Border and Immigration Agency Employer Checking  Service.

    7. An Immigration Status Document issued by the Home Office or the Border and Immigration Agency to the holder with an endorsement indicating that the person named in it can stay in the United Kingdom, and is allowed to do the type of work in question, when produced in combination with an official document giving the person's permanent National Insurance Number and their name issued by a Government agency or a previous employer.

    8. A letter issued by the Home Office or the Border and Immigration Agency to the holder or the employer or prospective employer, which indicates that the person named in it can stay in the United Kingdom and is allowed to do the work in question when produced in combination with an official document giving the person's permanent National Insurance Number and their name issued by a Government agency or a previous employer.

     

    Magrath LLP, Solicitors

    January 2008