The law on preventing illegal working is set out in the Immigration, Asylum and Nationality Act 2006 (“the 2006 Act”). The rules were introduced to make it harder for people with no right to work in the UK to be employed and also as part of the Government’s campaign on immigration control.
The Border Agency has published a useful and comprehensive guide to assist employers to comply with their duties under the 2006 Act – FULL GUIDE FOR EMPLOYERS ON PREVENTING ILLEGAL WORKING IN THE UK (May 2012). This can be found at www.ukba.homeoffice.gov.uk.
An employer’s duty
Under the 2006 Act employers have a duty to prevent illegal working. This must be done by carrying out document checks to confirm if a person has the right to work in the UK. It is essential that these checks are carried out before someone starts work. If there is a time limit on their stay then that should be recorded and the position reviewed before the expiry of the time limit or 12 months, whichever is the earlier. Any restrictions on the right to work (for example, type of work or hours) must also be adhered to.
Penalties for failing to carry out immigration checks
There are two ways in which an employer can be liable:
- Civil liability
If an employer fails to carry out the required checks a fine called a civil penalty can be imposed. This can be up to £10,000 for each illegal worker.
It is important to note that where an employer has correctly carried out the documents checks and is unaware that the worker has no right to work then they will have an excuse against having to pay the fine. All the more reason to ensure that the checks are completed.
- Criminal liability
An employer who knowingly employs an illegal worker is committing a criminal offence. The penalties include imprisonment of up to two years and/or an unlimited fine.
At the point an employer identifies that an existing worker no longer has the right to work it will be committing a criminal offence if the employment continues. We would recommend that urgent legal advice is taken on how to manage the situation.
All copy documents obtained must be retained securely during the person’s employment and for at least two years after it ends.
Your duties as an employer under the 2006 Act cannot be taken lightly particularly in view of the financial penalties. Reputational damage also has to be a consideration. Your business may be exposed if you are not able to establish from each personnel file whether a worker has the right to work with reference to copies of original documents that have been physically checked where the individual turns out to be an illegal worker. It is worth noting that the Border Agency’s arrival may be unannounced where they have a suspicion there may be illegal workers.
The key to avoiding liability is to ensure that your HR processes and documents clearly incorporate the document check requirements. Those responsible for HR and recruitment will need to understand what the right to work document checks will involve including what documents need to be viewed. They will also need to ensure that the checks are applied consistently across the workforce in a non-discriminatory way.
How the Guide can help
The Border Agency Guide can help as it provides a detailed explanation of how to carry out a document check including the type of documents that must be provided by the worker and when you must contact the Employer Checking Service as well as the various types of immigration statuses. There are also many illustrative examples of the documents that you may be given to check; this helps you to know what to look out for.
We appreciate that the duty under the 2006 Act can be daunting and time consuming. This is why Floyd Graham & Co has created its own Right to Work Audit Scheme to give employers peace of mind. The Scheme goes further than identifying risk areas and includes a remedial work strategy as well as leaving you with a system for managing compliance in the future. If you would like more information on this service please contact us as we would be happy to discuss further with you your business’s requirements.
Helen Taylor, Senior Associate
+ 44 (0) 1604 871143
This update is for general guidance only and does not constitute definitive advice.