Employers across all sectors are falling foul of immigration compliance and facing allegations of employing illegal immigrants.
Under current immigration rules, employers operate under onerous duties for the prevention of illegal working. Where employers are found to be in breach of their immigration compliance duties and are alleged to be employing illegal immigrants, they face serious Home Office penalties.
The phrase ‘illegal immigrants’ is not confined to stowaways at UK ports. This term extends to anyone who has not been granted leave to enter or remain in the UK, irrespective of how or when they entered, and whether or not this was in a clandestine fashion. This includes those who have entered the UK legally, for example, on a short stay visa, but have subsequently overstayed.
Within the workplace, the phrase ‘illegal immigrants’ includes anyone subject to immigration control who is disqualified from working by reason of that status. This may be because their leave to enter or remain in the UK is invalid, whether by reason of curtailment, revocation, cancellation, passage of time or otherwise. It may also be because their leave has ceased to have effect or is subject to a condition preventing the person from doing work of that kind.
How to avoid employing illegal immigrants
When carrying out prescribed document checks, the following steps must be undertaken:
- OBTAIN – obtain an original document, or combination of documents, in accordance with the Home Office approved list.
- CHECK – check the validity of the documentation provided in the presence of the holder.
- COPY – make and securely retain a clear copy of the documentation electronically or in hardcopy. This should be in a format that cannot be manually altered, such as a jpeg/pdf document or photocopy.
- RECORD – make a contemporaneous record of the date on which you conducted your check. This can be by either making a dated declaration on the copy itself or by holding a separate record. You should also keep a record of when any repeat checks must be made.
- RETAIN – retain your copies and records for the duration of the individual’s employment, and for a further 2 years after they leave. These may need to be shown to the Home Office upon request to establish your statutory excuse.
Checking the validity of documents to avoid employing illegal immigrants
When checking the validity of documentation presented to you as proof of an employee’s right to work, you must ensure that:
- the documentation is genuine, original and has not been tampered with.
- the person presenting the documentation is the rightful holder.
- the photographs and dates of birth are consistent across multiple documents and with the individual’s appearance.
- the expiry dates for permission to be in the UK have not passed and any work restrictions still permit the type of work, including any limit on the number of hours the individual is allowed to work.
- there is an explanation for any difference in names across multiple documents. You should seek further documentation to explain any differences, eg, an original marriage certificate or divorce decree. Any further documents must also be copied and retained.
You are not expected to be an expert in identifying fraudulent documentation. If you are provided with a false document you will only face penalty if it is reasonably apparent that the documentation checked was not genuine, did not rightfully belong to the holder or the work was not permitted.
In some cases you may also need to verify the employee’s right to work with the Home Office Employer Checking Service, eg, where an employee has an appeal or administrative review pending a decision. In these circumstances the Home Office will send you what’s known as a Positive Verification Notice to confirm that the individual in question has permission to work.
The responsibility for performing prescribed document checks rests with you as the employer. You cannot delegate this responsibility to a third party such as a recruitment agency. If a third party conducts the checks on your behalf, you will be unable to establish a statutory excuse in the event that you are found to be employing illegal immigrants.
Penalties for employing illegal immigrants
Under the Immigration, Asylum and Nationality Act 2006 your business may be liable for a civil penalty of up to £20,000 per illegal worker if you employ someone who does not have permission to be in the UK or undertake the work on offer.
Employers may also face criminal prosecution if they knew, or had reasonable cause to believe, that an employee did not hold a lawful immigration status. On conviction for employing illegal immigrants you may face up to 5 years’ imprisonment and/or an unlimited fine.
In addition to any civil or criminal sanctions imposed for employing illegal immigrants, you or your business may face a number of other consequences.
This includes a loss of sponsor status and revocation of your sponsorship licence to employ overseas workers. As a result there may be potential disruption to your business by way of loss of staff found to be illegal immigrants, as well as any other migrant workers no longer permitted to work for you following any loss of sponsor status.
Under new rules, immigration officers have tough new powers to temporarily close down any business found to be employing illegal immigrants where there is a history of the same. Accordingly, the imposition of an illegal working closure notice may again result in significant disruption to your business.
You may also suffer serious reputational damage, given that the Home Office publishes the identity of employers guilty of employing illegal immigrants in the workplace, as well as the level of any penalty imposed.
By carrying out the prescribed document checks correctly, you may be able to rely on a ‘statutory excuse’ to challenge a Home Office penalty.
Every employer, irrespective of size or sector, has to carry out prescribed document checks on all prospective and existing employees.
At DavidsonMorris, we specialise in helping employers meet their immigration compliance duties through for example the use of effective right to work processes, systems and personnel training.
We can help you to implement procedures to help you rely on the statutory excuse in the event that you are facing allegations of employing illegal immigrants. We can advise on all aspects of how to avoid hiring illegal immigrants, across the recruitment, onboarding and ongoing personnel management lifecycle. Contact us for help and advice with your immigration compliance.