Changes to the Law on Preventing Illegal Working
New provisions on illegal migrant working, contained in the Immigration, Asylum and Nationality Act 2006 (‘the 2006 Act’), came into force in Great Britain and Northern Ireland on 29th February 2008.
New Civil Penalty
It is an offence for an employer to employ a person aged 16 or over who is subject to immigration control unless that person has current and valid permission to be in the UK and has valid permission to do the type of work offered. “Employ” for this purpose means employ under a contract of service or apprenticeship. The new provisions will make it easier to prosecute employers of illegal workers and introduce a new civil penalty allowing fines of up to £10,000 per illegal employee on a sliding scale depending on the extent of the employer’s breach. Employers will have a defence against the imposition of a civil penalty if they have checked, copied and retained specified documents and taken Specified steps when checking the documents (the burden of proof being on the employer to demonstrate that this had been done). The new civil offence will stand alongside a strengthened criminal offence of knowingly employing an illegal employee. The intention is to differentiate between negligent employers and those who deliberately flout the law.
Criminal Offence
The Act amends the current criminal offence by requiring the prosecution to prove beyond a reasonable doubt that the employer knew that the employee was an illegal worker – it would no longer be a “strict liability” offence. The statutory defence will be removed (it will only apply to the civil penalty) and the employer would be liable to imprisonment for up to two years and/or unlimited fine (currently only liable to a fine). The Government is also considering disbarring company directors who are found to be knowingly employing illegal employees.
New Lists
The legislation provides employers with a defence against the imposition of a civil penalty if they have checked, copied and retained specified documents and taken specified steps when checking the documents before employing a person. With effect from 29th February 2008, there are two new lists, List A and List B, specifying which documents can be checked and copied to obtain the statutory excuse. References in the Lists to documents issued by the Home Office include documents issued by the former Immigration and Nationality Directorate (IND) and Work Permits (UK). List A and List B are shown overleaf.
Specified Steps
In relation to any document or combination of documents produced by an employee from the new lists, in order to obtain the statutory excuse, the employer must also take specified steps, namely:

• take all reasonable steps to check the validity of the document;
• retain securely a copy of the document for a period of not less than two years after the employment has come to an end;
• if a document contains a photograph, satisfy himself that the photograph is of the prospective employee;
• if a document contains a date of birth, satisfy himself that the date of birth is consistent with the appearance of the prospective employee;
• take all other reasonable steps to check that the prospective employee is the rightful owner of the document;
• if the document is not a passport or other travel document, retain a copy of whole of the document in a format which cannot be subsequently altered; and
• if the document is a passport or other travel document, copy the following pages of that document in a format which cannot be subsequently altered:
• 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;
• and page containing the date of expiry; and
• any page containing information indicating the holder has as entitlement to enter or remain in the UK and undertake the work in question.

It is important to note that the legislation does not provide a statutory excuse if the employer knows that the employee is not permitted to take the employment in question. Nor does the legislation permit employers to retain original documents produced by an employee for any period longer than is necessary for the purposes of ensuring compliance.
Continuing obligation
Employers will have a continuing obligation to check and copy documents and take the specified steps at least every 12 months for those employees who have only a limited ‘leave to remain’. Where a prospective employee produces an original document, or specified combination of documents, from List A which is checked and copied, the employer does not need to carry out further illegal working checks on that employee in the future. Where a prospective employee produces an original document or specified combination of documents from List B which is checked and copied, the employer must note the date on which the check was carried out and carry out a follow-up check at least once every 12 months after the initial check.
The Government is introducing a checking service by the Border and Immigration Agency to assist employers, particularly where an employee has an outstanding application for leave to remain and is unable to produce documents from either list.
Avoiding race discrimination
As currently, illegal working checks should be done at the same stage in the recruitment process for all applicants who have reached that stage. In order to avoid doing checks on numerous applicants, we would recommend performing the checks no earlier than the final short-listing stage. Job applicants should not be treated less favourably if they produce a document or documents from List B rather than List A.
New Guidance and Codes of Practice on Civil Penalties and on the Avoidance of Race Discrimination are available to employers from the Home Office.
Transfer of Undertakings
Employers who acquire staff as a result of a transfer of an undertaking (as may be the case where a business or part of a business is bought or where a contract to provide services is taken over) are provided with a period of 28 days grace to undertake the appropriate document checks.

(Courtesy Peninsula Business Services Ltd)

For more information: migrant.working@countyrecruit.com