Employing foreign workers update: avoiding illegal working
Annabel Mace of Hammonds LLP begins a series of articles providing an update on employing foreign workers with an overview of the provisions relating to avoiding illegal working. Employers that employ illegal workers may be liable for a civil and/or criminal penalty. To avoid liability for employing illegal workers employers need to take steps to establish a "statutory excuse" by checking and copying immigration documents.
Overview
The Immigration, Asylum and Nationality Act 2006 came into force on 29 February 2008 and applies in relation to foreign workers employed on or after that date. The Asylum and Immigration Act 1996, the relevant provisions of which were replaced by the 2006 Act, applied to foreign workers employed prior to 29 February 2008. There is no legal framework in respect of foreign workers employed prior to 27 January 1997 when the 1996 Act came into force.
Since 29 February 2008, employers that illegally employ foreign
workers who do not have the right to work in the
Checking documents
For employers to be able to establish a valid defence or "statutory excuse" to an allegation that they have illegally employed foreign workers they must carry out a "three-step check" in relation to each new employee before he or she starts work:
Step 1 - obtain the candidate's original immigration status documents. The documents on which employers can rely to provide a statutory excuse are set out in two lists referred to as list A and list B. Where an employee produces a document or combination of documents from list B, the employer must carry out a repeat check at least once every 12 months after the initial check to retain the defence. (See the XpertHR quick reference section for comprehensive lists of the documents that are in list A and list B.)
Step 2 - take reasonable steps to check the validity of the documents. To establish the excuse and, if the documents have been provided from list B, to retain it, employers must check the validity of each document provided, and satisfy themselves that the prospective or existing employee is the person named in the documents presented.
Step 3 - retain copies of the documents. Employers must make a copy of the relevant page or pages of the document(s) in a form that cannot subsequently be altered (for example a photocopy or a scan copy).
The UKBA Comprehensive guidance for employers on preventing illegal working (PDF format 1.56M) (on the UKBA website) sets out each step in detail and the procedures that employers should follow if they are presented with a passport or ID card from a European Economic Area (EEA) "A8" country (ie the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Slovakia or Slovenia) or an EEA "A2" country (ie Bulgaria or Romania).
An employer commits a criminal offence where it can be proved that it knowingly employed an illegal migrant worker. The 2006 Act also provides for personal liability on the part of corporate officers (for example directors, managers and company secretaries) who have responsibility for the relevant aspects of the employment relationship and who have knowingly employed an illegal migrant worker. An employee found guilty may be liable to a custodial sentence of up to two years and/or an unlimited fine.
Since 29 February 2008, employers have also been required to carry out immigration status document checks on employees that they inherit under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (SI 2006/246), within 28 days of the transfer. A contractual agreement between the transferor and transferee to leave liability with, or transfer it back, to the transferor, will not prevent the transferee from being liable if there are illegal workers employed. The transferee will not be able to rely on warranties from the transferor that it has already carried out the relevant checks.
Biometric residence permits
A biometric residence permit (formerly known as an identity card
for foreign nationals) issued by the UKBA is an acceptable document under both
lists A and B. While identity cards in the broader sense and the National
Identity Register are to be abolished by the Identity Documents Bill, biometric
residence permits are not within the scope of the proposed abolition. Non-EEA
nationals currently in the
Applicants for permits are required to provide their biometrics
(ie fingerprints and a photograph). These are checked by the UKBA against
existing records and stored in UKBA systems and within the microchipped permit.
The permit provides evidence of the holder's nationality, identity and status in
the
Recent changes
Indefinite leave to
remain: In August 2010, the UKBA announced that employers can accept an
indefinite leave to remain (ILR) stamp in an expired passport (of any
nationality) as evidence of an individual's right to work in the
However, this policy applies only to ILR stamps. Any other visa or
leave to remain in an expired non-EEA passport (including, but not limited to, a
certificate of entitlement to the right of abode) will not be acceptable
evidence of an individual's right to work in the UK unless the individual can
produce an original national insurance document together with an original letter
issued by the Home Office, the Border and Immigration Agency (BIA) (which
preceded the UKBA) or the UKBA, which indicates that the individual named in it
can stay in the UK and is allowed to do the work in question. An employee is
likely to have this letter only if he or she has made an application for leave
to remain to the Home Office/BIA/UKBA while present in the
Employers should ensure that they carry out the same step 2 checks in relation to expired EEA passports or passports endorsed with an ILR stamp as they currently undertake in relation to valid passports.
Equality Act 2010: Under the Equality Act 2010, which repealed and replaced the Race Relations Act 1976 with effect from 1 October 2010, it continues to be unlawful to discriminate in recruitment and employment because of race. To avoid successful race discrimination claims arising from the carrying out of right to work checks, employers should ensure that they make the same checks for all new employees at the same stage in the recruitment process, not just those that they suspect to be migrant workers. Employers may also be at risk of claims of indirect race discrimination if they operate blanket recruitment policies that require candidates to have permission to work in the UK before their applications will be considered, or if they unreasonably refuse to sponsor or continue to sponsor a current employee whose permission to work in the UK is due to expire. However, indirect discrimination may be justifiable (for example where the individual or the role in question would not qualify for sponsorship).
A Government Code of practice - guidance for employers on the avoidance of unlawful discrimination in employment practice while seeking to prevent illegal working (PDF format, 183K) is on the UKBA website.
Next week's article will look at the points-based system and any recent and future developments to it and will be published on 8 November.
Annabel Mace (Annabel.Mace@hammonds.com) is senior associate solicitor and Head of Business Immigration at Hammonds LLP.
Further information on Hammonds Solicitors can be accessed at www.hammonds.com.
