Proposed amendments to the Immigration Bill 2015-16, currently progressing through Parliament, make it clear that employers have a statutory obligation to prevent illegal working by carrying out document checks on their employees’ right to work in the UK. Failing to do so can result in a £20,000 civil penalty per illegal worker and potentially a criminal conviction.
The new bill may be law by this summer, and it will bring in changes to the checking regime, together with additional powers for immigration enforcement officers. If it goes ahead, the legislation will allow immigration officers to seize the earnings of anyone found to be working illegally. Under the current law, an employer commits a criminal offence if he or she knowingly employs an individual who does not have permission to work in the UK. In future, an employer may be found guilty if they had ‘reasonable cause to believe’ someone was an illegal worker.
The bill will also increase the maximum prison sentence for employers from two to five years and gives officers the power to issue a closure notice, which will effectively shut down a business for 48 hours. This can be extended if the Home Office obtains a court order.
Most employers who receive a civil penalty only do so due to poor practices – mainly due to one of these six mistakes:
Not recording the date on which a check was carried out (this can be done on the actual photocopy of the document).
Forgetting to make follow-up checks at the correct time.
Not carrying out additional checks (required if the employee is a student with work restrictions).
Not retaining evidence of checks for the necessary period of time and not retaining copies securely, e.g. in a locked drawer.
Taking photocopies of documents which are incomplete or unclear. A partial ‘right to work’ check at one time would have been considered ‘mitigating circumstances’, but this le
niency has since been removed – so checking and copying documents correctly is now vital.
Conducting right to work checks after the employee has started work. All initial right to work checks must be carried out prior to a new employee starting work.
Don’t get caught out. Make sure you carry out right to work checks on all potential new employees no matter what their nationality is. If you don’t, you could face a discrimination claim.
