PREVENTION OF ILLEGAL WORKING
All UK employers have a legal duty to prevent “illegal working” by ensuring that they do not employ anyone aged over 16 who does not have the right to carry out the work in question. This means not only determining whether you are employing someone with no immigration permission in the UK but also ensuring that anyone who has a right to be in the UK also has a right to work and does not work beyond the conditions set out in their visa.
A failure to comply with illegal working duties can lead to an employer being liable for a civil penalty of up to £20,000 for each illegal worker. In some cases, an employer may also face criminal prosecution resulting in an unlimited fine and/or a term of imprisonment. There is also the risk of reputational damage resulting from press coverage and the business’ details being published on the government’s website. Further if a business receives a civil penalty it may have an adverse impact on its ability to apply for a sponsor licence (or retain a sponsor licence) and sponsor non-EEA workers in the future, including those you wish to work for you under Tier 2 of the Points-Based system. This may significantly impact on the stability and operational effectiveness of a business.
To obtain a ‘statutory excuse’ and protect against being liable for a civil penalty, employers must conduct adequate document checks on all potential employees before the commencement of their employment contract and, for certain classes of non-EEA workers, must continue to carry our regular checks.
In order to establish a potential employee’s right to work in the UK, an employer should ask to see originals of one or more acceptable documents from the Home Office’ list of specified documents (‘List A’ or ‘List B’). The document’s validity must be checked in the presence of the holder and the employer must retain a clear copy of each document checked on file in an unalterable format. The employer must also record the date on which the check was conducted. All copies of the documents must be retained securely for the duration of an individual’s employment and for not less than two years after the employment has come to an end.
How we can assist
Our team of immigration lawyers have a wealth of experience providing tailored advice to businesses on their duties to prevent illegal working and complying with the UK’s burgeoning immigration laws generally. As part of our audit and compliance service we are able to conduct immigration compliance audits (both one off audits and annual audits) to:
• Review the adequacy of a UK company’s existing HR systems to comply with your illegal working obligations and, in particular, advise on the implementation of effective right to work checks;
• Review, in a non-discriminatory manner, a UK company’s current workforce to ensure that everyone is entitled to work for you in the role that they are carrying out; and
• Identify any immigration compliance issues and provide practical advice to eliminate any such issues.