All employers have a duty under the Immigration Asylum and Nationality Act 2006 to prevent illegal working by carrying out certain checks on prospective employees. These checks involve obtaining particular original immigration documents from the employee, checking those documents and copying them.
The type of documents the employer must check depends on the immigration status of the prospective employee. Provided that the employer has made the prescribed checks before the employee starts work, it can avoid civil penalties if it accidentally employs an illegal worker. Failure to carry out the proper checks can result in large civil penalties.
The required checks have recently changed and from 16 May 2014 onwards, a new Code of Practice applies to this area of the law (view it here).
The following key changes have been made:
- The list of acceptable documents has been reduced. Now where a document contains an expiry date, generally that document needs to be current.
- Employers are now required to record the date on which they made their checks, although they no longer need to copy the front page of the individual’s passport.
- Where an employee has time-limited permission to do the work in question, employers will no longer have to check their documents every 12 months. Rather, follow-up checks will generally only be required when the employee’s permission to be in the UK expires. This will depend on the dates set out in the individual’s immigration documents.
- Where there has been a TUPE transfer, the person inheriting staff will now have 60 days to make its checks. This is an increase from 28 days.
- The civil penalty for employing a worker illegally, where the employer cannot make out the ‘statutory excuse’, has increased from £10,000 to £20,000 per worker.
- Previously, employers could sometimes make out a ‘partial’ excuse where they had made some of the prescribed checks and avoid the imposition of a full civil penalty. From 16 May onwards however, a partial excuse will no longer be a mitigating factor in the calculation of a civil penalty.
- There is an updated code of practice for employers on avoiding unlawful discrimination while preventing illegal working (view it here).
Whilst some of these changes appear to be aimed at simplifying the process, it is clear that the penalties for failing to carry out the necessary checks are greater.