Conducting checks on the immigration status of prospective employees

In light of recent changes to the legislation, this article provides guidance to employers about conducting checks on prospective employees' immigration status.

Introduction

On 29 February 2008, the government introduced new legislation in respect of the prevention of illegal working. This established a regime of civil penalties to be imposed on employers of illegal workers, and a criminal offence of knowingly employing an illegal worker. The new provisions are set out in ss.15 to 25 of the Immigration, Asylum and Nationality Act 2006, and replace provisions in the Asylum and Immigration Act 1996, which were effectively repealed on 29 February.

The new provisions apply only to individuals who commenced employment with their employer on or after 29 February 2008. The previous provisions apply to employees who commenced employment prior to this date.

The new provision on civil penalties is set out in s.15 of the Immigration, Asylum and Nationality Act 2006. Section 15 provides that the secretary of state may impose notice of liability to pay a civil penalty of a specified amount on an employer. A sliding scale for the calculation of penalties is set out in the Civil penalties for employers: Code of Practice (PDF format, 154K) (on the Border & Immigration Agency website), although the actual amount payable will be decided on a case-by-case basis. The maximum penalty is £10,000 per illegal employee.

The new offence of knowingly employing an illegal worker is set out in s.21 of the Immigration, Asylum and Nationality Act 2006. On conviction the employer is liable to an unlimited fine and/or up to two years' imprisonment.

Establishing a statutory excuse

If an employer is found to be employing an illegal migrant, but has complied with the relevant procedures on obtaining, copying and retaining specified documentation from the individual prior to his or her starting employment, the employer may be able to establish a statutory excuse from paying a civil penalty.

To establish a statutory excuse, employers must check and copy either one original document, or two of a specified combination, from list A or list B. The lists are set out in the Schedule to the Immigration (Restrictions on Employment) Order 2007 (SI 2007/3290).

List A documents

• 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 UK and Colonies having the right of abode in the UK.
• 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 (EAA) or Switzerland.
• A residence permit, registration certificate or document certifying or indicating permanent residence issued by the Home Office or the Border & Immigration Agency to the family member of a national of an EEA country or Switzerland.
• A permanent residence card issued by the Home Office or the Border & Immigration Agency to the family member of a national of an EEA country or Switzerland.
• A Biometric Immigration Document issued by the Border & Immigration Agency to the holder that indicates that the person named in it is allowed to stay indefinitely in the UK, or has no time limit on his or her stay in the UK.
• A passport or other travel document endorsed to show that the holder is exempt from immigration control, is allowed to stay indefinitely in the UK, has the right of abode in the UK, or has no time limit on his or her stay in the UK.
• An Immigration Status Document issued by the Home Office or the Border & Immigration Agency to the holder with an endorsement indicating that the person named in it is allowed to stay indefinitely in the UK, or has no time limit on his or her stay in the UK, when produced in combination with an official document giving the person's permanent national insurance number and his or her name issued by a government agency or a previous employer.
• A full birth certificate issued in the UK that 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 his or her name issued by a government agency or a previous employer.
• A full adoption certificate issued in the UK that 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 his or her name issued by a government agency or a previous employer.
• 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 his or her name issued by a government agency or a previous employer.
• 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 his or her name issued by a government agency or a previous employer.
• 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 his or her name issued by a government agency or a previous employer.
• A letter issued by the Home Office or the Border & Immigration Agency to the holder that indicates that the person named in it is allowed to stay indefinitely in the UK, when produced in combination with an official document giving the person's permanent national insurance number and his or her name issued by a government agency or a previous employer.

List B documents

• A passport or travel document to show that the holder is allowed to stay in the UK and is allowed to do the type of work in question, provided that it does not require the issue of a work permit.
• A Biometric Immigration Document issued by the Border & Immigration Agency to the holder that indicates that the person named in it can stay in the UK and is allowed to do the work in question.
• A work permit or other approval to take employment issued by the Home Office or the Border & 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 UK and is allowed to do the work in question, or a letter issued by the Home Office or the Border & Immigration Agency to the holder or the employer or prospective employer confirming the same.
• A certificate of application issued by the Home Office or the Border & Immigration Agency to or for a family member of a national of an EEA country or Switzerland stating that the holder is permitted to take employment and that is less than six months old, when produced in combination with evidence of verification by the Border & Immigration Agency Employer Checking Service.
• A residence card or document issued by the Home Office or the Border & Immigration Agency to a family member of a national of an EEA country or Switzerland.
• An Application Registration Card issued by the Home Office or the Border & Immigration Agency stating that the holder is permitted to take employment, when produced in combination with evidence of verification by the Border & Immigration Agency Employer Checking Service.
• An Immigration Status Document issued by the Home Office or the Border & Immigration Agency to the holder with an endorsement indicating that the person named in it can stay in the UK, 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 his or her name issued by a government agency or a previous employer.
• A letter issued by the Home Office or the Border & Immigration Agency to the holder or the employer or prospective employer that indicates that the person named in it can stay in the UK, 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 his or her name issued by a government agency or a previous employer.

Checking the documents

Once an employer has obtained the specified documents from either List A or List B, it must carry out some basic checks to ensure that the documentation presented relates to the individual in question.

The employer will, therefore, need to check any photograph in the document(s) against the individual to ensure that it bears a reasonable resemblance to him or her. It should also check that any date of birth on the document(s) appears to correspond to the individual's age, and make sure that any expiry date regarding limited leave to enter or remain in the UK has not passed.

The employer should check that a document does not appear to be a forgery, or to have been altered in any way. There might, for example, be indications that a passport photograph has been replaced. However, the employer is not required to be an expert in identifying forged documents.

Where two documents are provided and the names on the documents are different, the employer will need to ask the individual for an explanation, together with further documentary evidence to support this explanation - for example, a marriage certificate or a divorce decree.

Once the employer has obtained and checked the relevant documentation, and is satisfied with it, it should make copies of the documentation. If the document is not a passport or other travel document, a copy of the entire document should be taken. If the document is a passport or other travel document, the pages that should be copied are:

• the front cover;
• any page containing the holder's personal details, including nationality;
• any page containing the holder's photograph;
• any page containing the holder's signature;
• any page containing the date of expiry; and
• any page containing endorsements by officials of the Border & Immigration Agency or UK Visas.

Copies of the documents need to be kept securely for a period of not less than two years after the employment has come to an end.

If an individual is not able to produce the relevant documents, or the employer is not satisfied with the documentation that has been presented to it, the employer may decline to proceed with the offer of work, and the onus is on the individual to establish that he or she does have permission to work in the UK.

Employers may be presented with documents that require verification by the Employer Checking Agency (a certificate of application or an Application Registration Card). Where an individual is unable to produce a document and indicates that this is the result of having an outstanding application for leave to remain, the employer should also use the Employer Checking Service to verify the individual's right to work in the UK. It is the employer's responsibility to inform the individual where it intends to make such checks with the service.

General advice on the prevention of illegal working can be obtained from the Employers' Helpline: 0845 010 6677.

Ongoing checks

Those individuals who have no restrictions on their stay in the UK, or are not subject to immigration control, should be able to produce the required document(s) from List A, while those who are time-restricted in terms of their leave to enter or remain will produce documents from List B.

Where an individual produces the required documentation from List A, and this has been checked and copied, the employer is not required to carry out any subsequent document checks on the individual.

However, there is now an ongoing obligation on employers to carry out checks where individuals produce documentation from List B. In relation to such individuals, the employer is excused from paying a penalty under s.15 for a period of 12 months from the date that the employee produced the documentation. This means that the employer needs to carry out a check at least once every 12 months if it is to retain the statutory excuse. Employers will need to put systems in place to ensure that such checks are made.

If the employee's leave to remain expires sooner than 12 months from the last review date, the employer must ensure that it checks his or her immigration status prior to the leave expiring. If the employee does not make a valid application for leave to remain prior to the expiry, he or she will automatically become an overstayer. If the individual continues in employment, the employer will lose the protection of the statutory excuse and could be liable for a civil penalty and/or criminal liability.

Knowledge that an individual is not permitted to work

Employers should be aware that obtaining the relevant documentation, checking it and storing it will not establish a statutory excuse where they are aware that the individual in question does not, in fact, have the appropriate permission to carry out the job in question at any period throughout the employment. If this is the case, not only will the statutory excuse be invalidated, but the employer may also be rendered liable to prosecution under the new statutory offence under s.21 of knowingly employing an illegal worker. On conviction the employer will be liable to an unlimited fine and/or imprisonment for up to two years.

Level of potential civil penalty

The maximum civil penalty payable is £10,000 per illegal employee. Appendix D of Prevention of illegal working: Immigration, Asylum and Nationality Act 2006: comprehensive guidance for employers on preventing illegal working (PDF format, 1.56MB) (on the Border & Immigration Agency website) sets out the penalties that an enforcement officer is likely to impose should he or she find illegal workers on an employer's site.

The factors that are taken into account include the level and nature of the checks carried out by the employer, on how many occasions the employer has failed to check workers' entitlement to work in the UK, and whether or not the employer has cooperated with the Border & Immigration Agency in any investigation.

Where an employer is found to have carried out only partial checks, and it is the first occasion on which it has been found to have illegal migrants in its workforce, it is likely to be issued with a warning letter rather than a penalty. If, however, it is the third occasion on which the employer has been found with illegal migrants among its workforce, and no checks have been carried out, the maximum penalty of £10,000 per illegal worker is likely to be imposed.

Avoiding discrimination

When carrying out the pre-employment checks that will enable them to establish the statutory excuse against paying a civil penalty, employers must take care to avoid possible race discrimination. It is, therefore, vital that they request the relevant documentation from all prospective employees, not just those whom they suspect are not EU nationals or do not have permission to work in the UK. The Home Office has issued Guidance for employers on the avoidance of unlawful discrimination in employment practice while seeking to prevent illegal working: Code of practice (PDF format, 183K) on the Border & Immigration Agency website.

Transfer of undertakings

Employers that acquire employees as the result of a TUPE transfer have a grace period of 28 days following the transfer in which to undertake the necessary document checks and establish the statutory excuse.

Conclusion

The new provisions indicate the government's determination to come down hard on employers employing illegal migrants. The combination of possible swingeing civil penalties and potential criminal liability for those found to be employing illegal workers means that it is advisable for employers to follow the prescribed procedures. Employers will also need to ensure that they have the relevant systems in place to carry out timely renewal checks where necessary, as failure to do so could also result in liability.

This feature was contributed by Mark Barnett, Head of Immigration at Steeles Law Solicitors.