Partner Sue Dowling, in our Employment law team, explains the pentalties that employers can face if found to be illegally employing workers and the right to work checks that should be made.
Background
The Immigration, Asylum and Nationality Act 2006 (the Act) established a penalty scheme in respect of the employment of illegal workers.
Employers who fail to comply with the Act run the risk of prosecution. Civil penalties are up to £20,000 per illegal worker.
It is also a criminal offence under the Act to knowingly employ illegal workers. This is defined as being where employers “know or have reasonable cause to believe” that they are employing an illegal worker.
Breach of this provision carries a custodial sentence of up to 5 years and / or an unlimited fine, or both. It can also in serious cases lead to closure of the business, and / or disqualification as a director.
Whether accidental or deliberate, breach of the Act can also lead to the revocation of any sponsorship licence(s) held by the wider business so that the business is no longer able to sponsor migrant workers. Any existing sponsored migrant workers would then have 60 days in which to find new employment with a licensed sponsor or leave the UK.
Establishing a Statutory Excuse
In order to a civil penalty and / or prosecution, a statutory excuse may be established by the employers as a defence against illegal working.
An employer will have a statutory excuse if they have followed a number of steps prior to the commencement of that particular employee’s employment, and that they have documented evidence of the same. If the Home Office is satisfied that the employer has a statutory excuse, then they will not be liable for a civil penalty.
If the employer has accepted a document where it is reasonably apparent that the person presenting the document is not the rightful owner, the document is false, or if any employer has accepted documents where the person is not allowed to work or live in the UK, the employer will not have a statutory excuse.
There are prescribed requirements in order to establish a statutory excuse as set out below:-
Documents required for those people with a permanent right to live in the UK:
- British passport;
- EEA or Swiss Passport;
- A permanent residence document issued to an EEA or Swiss national or their family member; or
- A Biometric Residence Permit (BRP) showing no time limit restrictions, or a permanent residence stamp/endorsement from an individual’s passport.
Documents required for those people with a temporary right to live in the UK:
Group 1 – This list contains acceptable documents that establish a continuous statutory excuse and no further checks will be necessary during the period of employment:
a) Current passport;
b) Biometric Residence Permit showing certain time restrictions; or
c) Immigration status documents with a photograph.
Group 2 – This list contains documents with a time limited statutory excuse that only lasts six months. Further checks will be required after the six months has lapsed:
a) Positive verification notice issued by the Home Office Employer checking service;
b) Certificate of application;
c) An application registration card stating the holder is permitted to take the employment, together with a positive verification notice indicating the name person may stay in the UK and is permitted to do the work in question.
For each document held by an employer, they must take reasonable steps to ensure it is genuine, and that the person producing the document is the rightful owner. The employer must be satisfied that the documents are legitimate and if in doubt, must ask for further information and documentation.
The employer must also take a photocopy or scan of the employee’s documentation (passport, BRP, Visa etc.) – these must be kept during the duration of the workers employment and for a further two years after and the date on which these copies are taken should also be noted.
There are separate provisions in respect of the employment of students.
It is expected that these provisions will be amended to take into account the use of the EU settlement scheme should the UK leave the EU later this year.
We can advise on these matters.
For further information or legal advice, please contact law@blandy.co.uk or call 0118 951 6800.
This article is intended for the use of clients and other interested parties. The information contained in it is believed to be correct at the date of publication, but it is necessarily of a brief and general nature and should not be relied upon as a substitute for specific professional advice.
