A forthcoming Immigration Bill, which is to be implemented during Autumn 2015, will affect illegal workers, as they may face a prison sentence of up to six months, as well as have their wages confiscated by the police and face deportation. At the same time, businesses could lose their license if they are found to be employing illegal workers.
Since 1997, there has existed a law by which all UK employers are required to check all their employees’ right to work in the country. The reason behind this regulation is that, if a company hires an illegal worker unknowingly, the check report will serve as proof and defense against conviction and/or payment of a civil penalty.
In February 2008, UKBA introduced a civil penalty system for employers who use illegal workers. The new system, which integrates with section 15 of the Immigration, Asylum and Nationality Act 2006, penalizes employers hiring illegal workers and requires all companies to take the initial employment date in consideration when checking a candidate’s right to work, as well as to make further checks on the documents at scheduled times when the employee has a time limit on their permission to enter or remain in the UK.
Penalties
An employer can be fined up to £20,000 per person if they are found guilty of hiring an illegal worker, but valid reasons as to why the illegal worker has been employed by the company may revoke the fine. A Civil Penalty Notice will be sent if the employer has been found liable, after which they will have 28 days to respond, pay the fine or appeal.
It is worth mentioning that, in the event that the employer is found guilty of knowingly hiring an illegal migrant, they could be sent to jail for up to 2 years and fined an unlimited amount. Moreover, the new Immigration Bill will raise that sentence to 5 years. The employer may also be downgraded on the register of sponsors or have their license cancelled and be removed from the register altogether so that they will be unable to bring any future migrant workers to the UK.
Who can work in the UK – a guideline
● British citizens
● Commonwealth citizens and citizens of the UK and Colonies with the right of abode in the UK
● Nationals from the Common Travel Area (EEA) and Switzerland (except Croatian nationals (until 20 June 2017)
● Non EEA family members of nationals from EEA countries and Switzerland, if the EEA national is lawfully residing in the UK
How can you make sure that your employee has the right to work in the UK?
Valid documentation
Your candidate should provide you or your screening company with one (or more) of the following documents, which then need to be verified.
This list includes many – but not all – of the valid documents that prove the right to work in the UK. For a full list, please check Annexes A and B (p. 37-38) from this comprehensive document by www.gov.uk :
● Passport
● National Identity Card
● Registration Certificate or Document Certifying Permanent Residence issued by the Home Office to a national of a EEA country or Switzerland
● A Permanent Residence Card issued by the Home Office to the family member of a national a EEA country or Switzerland
● A current Biometric Immigration Document (Biometric Residence Permit) issued by the Home Office to the holder, indicating that the person named is allowed to stay indefinitely in the UK, or has not time limit on their stay in the UK
● A current Immigration Status Document issued by the Home Office to the holder with an endorsement indicating that the named person is allowed to stay indefinitely in the Uk or has no time limit on their stay in the UK together with an official document giving the person’s permanent National Insurance number and their name issued by a Government agency or a previous employer.
● A birth or adoption certificate issued in the UK, the Channel Islands, the Isles of Man or Ireland (check the link for more details on the latter – Annex A, point 9)
● A certificate of registration or naturalisation as a British citizen, together with an official document giving the person’s permanent National Insurance number and their name issued by a Government agency or a previous employer.
Checking the document
● All photographs should match the appearance of the candidate
● All dates of birth and signatures must match
● Any expiry dates of leave to enter or remain in the UK must not have passed
● If family names or other personal details do not match, further proof should be obtained to justify the difference between the two documents
● A copy of the document(s) should be produced in a format that cannot be subsequently altered
Beware of special restrictions
● Applicants with a student visa may have the right to stay in the UK, but not the right to work in the UK. Alternatively, they may have the right to work in the UK, but only for a limited number of hours.
● Applicants with a lapsed visa who are currently applying for a new visa cannot use their old visa to prove their right to work in the UK, as it is no longer a valid document
There is also the option to outsource these checks to companies such as Experian or Onfido Background Checks in order to ensure that you are compliant.
Sources: Gov.uk, Forum of Private Business, FindLaw UK, BBC and The Independent
Content kindly provide by Irene Alegre from Onfido – irene.alegre@onfido.com
