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What Employers Should Know About Commercial Immigration Law

Immigration, illegal immigration and foreign workers are subjects that are never far from being reported by the UKs media. However, aside from being high impact, these stories can often be mis -leading leaving business owners nothing short of confused. The true extent of the immigration crisis remains shrouded in mystery and media speculation, but what is clear is that employing illegal workers is an ongoing concern for everyone within a business, because the consequences are potentially devastating. This article aims to provide straight forward information, avoiding commentary on the social and ethical implications and the politics involved.

Let’s start off by hammering home the point; According to Taylor Rose TTKW, “As an employer, you have a responsibility to prevent illegal working in the UK by ensuring that your employees have the right to work. You, the employer, can be fined up to £20,000 per illegal worker.”

Employers have had a legal duty since 2006 to carry out the relevant document checks that new employees are entitled to work in the UK. Pleading ignorance simply will not wash, this is not ‘slap on the wrist’ territory you have entered. In short, employing an illegal worker could spell the end of your business.

What constitutes an illegal worker?

In short? Those without a work permit; a visitor’s visa does not entitle the individual to work.

Citizens of the UK, Switzerland and nationals of the selected European Economic Area countries are all entitled to work within the UK. Providing that they can supply employers with the relevant documents required.

Any citizens outside of these countries, are not permitted to work without the appropriate visa.

Students with visas that have expired are considered illegal workers. As are students that are exceeding their maximum working hours - usually between 10 and 20 per week. If you are employing foreign students, there maximum working hours can be found printed on their visa sticker or Bio-metric Resident Permit.

If you are employing foreign students, you must have seen and recorded details of the academic term and vacation times that covers the duration of their period of study for which they will be employed.

Students from within the EU are not restricted to the amount of hours worked.

The rules surrounding foreign students enrolled in further education, rather than higher, are much more stringent. As of August 2015, students studying at further education colleges in the UK no longer have the right to work alongside their studies and are no longer allowed to apply for a work visa once their studies have concluded, unless they return home first.

Minister of Immigration James Brokenshire said, “The Government is reforming the student visa system to reduce net migration and tackle abuse. These changes will help achieve this, whilst ensuring the UK maintains a highly competitive offer and continues to attract the brightest and best international students.”

What are the basic rules for employing foreign workers?

It is business critical that the applicable criteria has been met and documented for EACH foreign worker, its good practice to undertake all checks before employment commences.

Original documents must be seen and copies kept, which fall into the Home Office known prescribed list – employers are also required to record the date of which the check was made.

Examples of relevant documents include; Passports, a bio-metric immigration document, identity cards, residence cards, birth or adoption certificates along with NI evidence, a current immigration status document.

At this point, you MUST check that details are consistent across all the documents provided, and if details such as names are different there should be supporting documents such as marriage/divorce certificates. The expiration dates of documents must be checked and the all photos must be checked to ensure you are happy they are all a photograph of the applicant.

If for any reason, you have doubted any of the documents, you must question the individual and document the answer given, along with the date the discussion took place. If you still need validation, employers can ring the Home Office’s employer helpline to determine the legitimacy of the candidate’s immigration permission.

When the documents are being copied, if they cannot be copied in full then it is essential that they show relevant personal details such as nationality, photograph, document expiry date, signature and relevant information regarding their entitlement to enter/remain and undertake work in the UK. Documents must be kept for a further 2 years after the employee has stopped working for you.

Please note: some of the documents (that fall into the ‘B’ list) then repeat checks need to be carried out.

What are the potential penalties?

If you are found to be employing an illegal worker, there are a number of penalties that you could find yourself issued with.

Initially, you will receive a ‘referral notice’ that will inform you your case is being considered by officials; and as mentioned previously you may also receive a civil penalty of up to £20,000 for each illegal worker.

If you can prove that you have a valid reason for employing an illegal worker, such as a statutory excuse then you are not required to pay the fine. However, if you are found liable you will be sent a ’civil penalty notice, issuing you with your payment options and details of how to appeal.

It’s not uncommon for Immigration Enforcement to ‘make an example’ of you by publishing your business details. This is to serve as a warning to other businesses not to employ illegal workers.

If you have knowingly employed an illegal worker, you should be prepared to receive a jail sentence of up to 2 years imprisonment along with an unlimited fine.

This was posted in Bdaily's Members' News section by Rebecca Moore .