The risks of employing illegal workers
Employers need to ensure that they are aware of the potential cost to their business (and their reputation) if they are found to be employing workers who are not legally entitled to work in the UK.
The UK Border Agency (UKBA) operates a strict compliance framework in this country, and requires businesses to ensure that they do not employ illegal workers. They have legal powers to impose “civil penalty” fines of up to £10,000 per illegal worker found at any business premises, where the employer cannot demonstrate that the worker has the legal right to work (Section 15 of the Immigration, Asylum and Nationality Act 2006).
Since the introduction of this legislation on 29.02.2008, many employers have been fined under the civil penalty regime, and in some cases, fines in excess of £100,000 have been levied on individual businesses which have been found to be in breach of the rules by employing illegal workers. The UKBA operates a website which “names and shames” businesses which have incurred civil penalty fines, and the possible damage to business reputation of an appearance on the website should not be underestimated.
It should be noted that civil penalty fines can be summarily imposed by the UKBA on a visit to an employer’s premises and it is only if the employer wishes to challenge such fines, by recourse to the County Court statutory appeal system, that the courts will become involved. The UKBA does not have to “prove their case” and it is rather the employer who has to prove that their employee does have the right to work in the UK.
Further Potential Liability
Further potential liability can be incurred by way of criminal prosecution for knowingly employing an illegal worker (Section 21 of the Immigration, Asylum and Nationality Act 2006) and this could lead to a two year term of imprisonment and/or an unlimited fine, in addition to any civil penalty imposed. Any “officer” of the company can be prosecuted (e.g. a human resources manager) in addition to the Director(s) or Company Secretary.
How You Can Protect Your Business
You can protect your business by making sure that you carry out the specified “document checks” before any new employees start working for you. This will provide you with a “statutory excuse” against paying a civil penalty.
However, this will not protect you if you are prosecuted under section 21 of the Act (knowingly employing an illegal worker), where you may still face a fine or imprisonment if the offence is proven against you.
It should be noted that different legislation applies to employees who started work before 29.02.2008, however criminal prosecution is still a possibility in respect of these employees, depending on the start date of their employment.
Document checks will only be effective if you carry them out before your employees start work for you.
Some employees will have an unlimited right to work in the UK (e.g. they are a British citizen or have some other kind of permanent status) and for those people you just need to carry out the document checks once before they start work (see below for process). You just need to check an original document from the UKBA “List A”, or a combination of documents from that list, to provide yourself with a “statutory excuse” against a civil penalty.
Others will have a limited right to work (e.g. some students) and you will need to recheck their documents (from the UKBA “List B”) every 12 months, and record that this has been done on their staff record. Please be aware that following changes in the rules, some students are not allowed to work at all, and you need to be aware of the variations in the type of students and the number of hours that they are allowed to work each week in order to apply these checks correctly.
You must ensure that you are provided with sight of original documents, e.g. an original passport. If the passport photograph does not appear to match the age of the person, or appears to have been tampered with, you will not be able to satisfy yourself that the documents are genuine, and UKBA will not accept that you have established a statutory excuse against a civil penalty fine.
UKBA guidelines state that it is insufficient to copy one page of the passport, and that they require the front cover, title page, and any visa or leave stamps to be photocopied. You should initial and date the copy as having been checked and ensure that it is placed on the staff record. It is recommended that these documents are kept for a period of two years after the employment ends, to ensure that you are covered against a finding of illegal working and the risk of a civil penalty.
You need to be aware that you are not allowed to discriminate in your recruitment policies and procedures, and therefore all job applicants and new starters should be treated in exactly the same way. This means that you should check the documents of all new employees for the right to work in the UK, even if they appear to be British. It is possible for some young adults to have been born in the UK, and not to be British citizens, so to avoid the risk of making a mistake you should check everybody, and not expose yourself to a possible accusation that you have used discriminatory practices in recruitment of staff.
The law in relation to illegal working is complex. We recommend that if you are in any doubt about how the law applies to you and your business then you should seek professional legal advice. For advice and assistance with prevention of illegal working, compliance checks or challenging a civil penalty then contact our immigration barristers in London direct on 0203 617 9173 or by email on firstname.lastname@example.org.