Keeping it legal

In previous Journal issues (March, 44; July, 60) I examined the new points-based system and tiers 1 and 2. We now turn to the new offences relating to the employment of illegal immigrants or immigrants lawfully in the UK but without permission to work. I also address the checks required of employers and identify the documents immigrant employees should provide.

On 29 February 2008 ss 15-25 of the Immigration, Asylum and Nationality Act 2006 came into force. Under s 15 an employer who employs someone over the age of 16 who is subject to immigration control will be liable to pay a civil penalty of up to £10,000 per illegal worker. The Secretary of State is empowered to issue a penalty notice which will be served by the UK Border Agency (UKBA). The new provisions apply only where employment commences on or after 29 February.

There is a sliding scale of penalties. Which scale is applied will depend on:

• how many times an employer has been found employing illegal migrants;
• whether the employer is cooperating with the UKBA;
• whether the employer has reported any suspected illegal migrant;
• the nature of the employer’s checks.

Under the new law, employers will be able to establish an excuse and may not have to pay the civil penalty, even if it transpires that the employee was working illegally. To establish the excuse employers will have to check and copy one, or a specified combination, of original documents for prospective employees before their employment begins. The excuse will not be available if employers knowingly employ an illegal migrant worker.

Although employers are not legally required to conduct these checks, it is recommended all prospective employees are checked, as this will establish a statutory excuse. Additionally, this will enable employers to demonstrate an open and transparent recruitment process which does not discriminate against individuals on racial grounds.

Steps to safety

If an individual is not subject to immigration control, or has no restrictions on their stay in the UK, they should be able to produce a document or a specified combination of documents, from List A (opposite). The checks must be made before they are employed and the excuse will then be established for the duration of the individual’s employment.

Where the leave to enter or remain in the UK granted to an individual is time-limited, the document or documents provided will be specified in List B. If an individual provides a document or documents from

List B, employers should carry out specified document checks before employment begins and carry out follow-up checks at least once every 12 months. These repeated checks are required to retain the excuse. If employers do not carry out the follow-up checks, they may be subject to a civil penalty if the employee is found to be working illegally.

To establish the excuse and avoid being liable for payment of a civil penalty for employing a person illegally it is recommended that employers conduct checks as follows:

Step 1

A prospective employee must provide:

• one of the original documents alone, or two of the original documents in the specified combinations given in List A ; or

• one of the original documents alone, or two of the original documents in the specified combinations given in List B.

Step 2

To establish and retain an excuse, if List B statutory documents have been presented, employers are required to check the validity of the document and establish that the identity of a prospective, or existing employee, is the same as the person named in the documents presented. Employers should do the following:

• check that any photographs contained in the documentation are consistent with the appearance of the employee; and

• check that the dates of birth listed are consistent across documents and that they are satisfied these correspond with the appearance of the prospective or current employee; and
• check that the expiry dates of any limited leave to enter or remain in the UK have not passed; and
• check any stamps and visas to see if the prospective or current employee is able to do the type of work offered; and
• satisfy themselves that the documents are genuine and have not been tampered with and belong to the holder; and
• if the prospective or current employee produces two documents which have different names, ask them for a further document to explain the reason for this. The further document could be a marriage certificate, a divorce decree, a deed poll document or statutory declaration.

Step 3

Employers need to make a copy of the relevant page or pages of the document, in a format which cannot be subsequently altered, for example a photocopy or scan. In the case of a passport or other travel document, the following parts must be photocopied or scanned:

the front cover and any page containing the holder’s personal details, in particular any page that provides details of nationality, photograph, date of birth, signature, date of expiry or biometric details; and  any page containing UK Government endorsements, noting the date of expiry and any relevant UK immigration endorsement which allows the prospective or current employee to do the type of work offered.

Other documents should be copied in their entirety.

The copies of the documents should be kept securely for at least two years after employment has ceased. When a follow-up documents check is undertaken (at least every 12 months), the specified steps given above should be repeated.

Employers who acquire staff as a result of a Transfer of Undertakings (Protection of Employment) Regulations (TUPE) transfer are provided with a grace period of 28 days to undertake the appropriate document checks following the date of transfer.

Losing the defence

Employers presented with a false travel document or visa will only be required to pay a civil penalty if the falsity is reasonably apparent. The test is whether an individual who is untrained in the identification of false documents, examining it carefully, but briefly and without the use of technological aids, could reasonably be expected to realise that the document in question is not genuine. Equally, where a prospective employee presents a document and it is reasonably apparent that the person presenting the document is not the person referred to in that document, the employer may also be subject to legal action, even if the document itself is genuine. If the falsity is not reasonably apparent, or a valid document is presented by the named person, the employer can expect not to be subject to the penalty.

If an employer knows that a person who is working for them is not permitted to do the job in question, they will lose their right to the excuse and could face prosecution under s 21 of the 2006 Act. On conviction following indictment the maximum penalty is two years’ imprisonment and/or an unlimited fine. On summary conviction, the maximum penalty is 12 months’ imprisonment in England & Wales or Scotland (six months in Northern Ireland), or a fine up to the statutory maximum or both. This allows UKBA to tackle the minority of employers who deliberately employ illegal workers and use false or forged documents to obtain a false excuse.

Section 21(3) empowers immigration officers to arrest, enter and search in relation to this offence.

For the purposes of s 21(1), a body (whether corporate or not) shall be treated as knowing a fact about an employee if a person who has responsibility within the body for an aspect of the employment knows the fact (s 22 (1)). If an offence is committed by a body corporate with the consent or connivance of a director, manager, secretary or a person purporting to act as such, or a member of a body whose affairs are managed by its members, that person shall also be treated as having committed the offence. The same applies to a partner or person purporting to act as a partner of a partnership or limited partnership (s 22 (2)-(4)).

Objection and appeal

Under s 16 of the Act an employer may object to the payment of a penalty to the Secretary of State on the basis that he is not liable, has acquired a statutory excuse or the penalty is too high. With the grounds for objection the employer will be required to supply any additional evidence in support. The Secretary of State must respond to the objection within 28 days, and can cancel, reduce or increase the penalty or decide not to take any action against the employer. If the employer is still not satisfied they may appeal to the county court or sheriff court against the penalty. There is no requirement to object first: a dissatisfied employer can appeal directly to the court (s 17).

Note that nationals of the European Union are permitted to work in the UK without any Home Office approval (different rules apply to A8 and A2 EEA nationals).

General advice on the prevention of illegal working can be obtained from the UK Border Agency’s employers’ helpline 0845 010 6677, and further information via www.bia.homeoffice.gov.uk .

Damir Duheric is a senior solicitor with Morton Fraser Solicitors, specialising in immigration law.

t: 0131 247 1292

e: damir.duheric@morton-fraser.comi

List A: Documents which provide an ongoing excuse

1. A passport showing that the holder, or a person named in the passport as the child of the holder, is a British citizen or a citizen of the United Kingdom and Colonies having the right of abode in the United Kingdom.

2. A passport or national identity card showing that the holder, or a person named in the passport as the child of the holder, is a national of the European Economic Area or Switzerland.

3. A residence permit, registration certificate or document certifying or indicating permanent residence issued by the Home Office or the UK Border Agency to a national of a European Economic Area country or Switzerland.

4. A permanent residence card issued by the Home Office or the UK Border Agency to the family member of a national of a European Economic Area country or Switzerland.

5. A biometric immigration document issued by the UK Border Agency to the holder which indicates that the person named in it is allowed to stay indefinitely in the United Kingdom, or has no time limit on their stay in the United Kingdom.

6. A passport or other travel document endorsed to show that the holder is exempt from immigration control, is allowed to stay indefinitely in the United Kingdom, has the right of abode in the United Kingdom, or has no time limit on their stay in the United Kingdom.

7. An immigration status document issued by the Home Office or the UK Border Agency to the holder with an endorsement indicating that the person named in it is allowed to stay indefinitely in the United Kingdom, or has no time limit on their stay in the United Kingdom, when produced in combination with an official document giving the person’s permanent national insurance number and their name issued by a government agency or a previous employer.

8. A full birth certificate issued in the United Kingdom which includes the name(s) of at least one of the holder’s parents, when produced in combination with an official document giving the person’s permanent national insurance number and their name issued by a government agency or a previous employer.

9. A full adoption certificate issued in the United Kingdom which includes the name(s) of at least one of the holder’s adoptive parents, when produced in combination with an official document giving the person’s permanent national insurance number and their name issued by a government agency or a previous employer.

10. A birth certificate issued in the Channel Islands, the Isle of Man or Ireland, when produced in combination with an official document giving the person’s permanent national insurance number and their name issued by a government agency or a previous employer.

11. An adoption certificate issued in the Channel Islands, the Isle of Man or Ireland, when produced in combination with an official document giving the person’s permanent national insurance number and their name issued by a government agency or a previous employer.

12. A certificate of registration or naturalisation as a British citizen, when produced in combination with an official document giving the person’s permanent national insurance number and their name issued by a government agency or a previous employer.

13. A letter issued by the Home Office or the UK Border Agency to the holder which indicates that the person named in it is allowed to stay indefinitely in the United Kingdom, when produced in combination with an official document giving the person’s permanent national insurance number and their name issued by a government agency or a previous employer.

List B: Documents which provide an excuse for up to 12 months

1. A passport or travel document endorsed to show that the holder is allowed to stay in the United Kingdom and is allowed to do the type of work in question, provided that it does not require the issue of a work permit.

2. A biometric immigration document issued by the UK Border Agency to the holder which indicates the person named in it can stay in the United Kingdom and is allowed to do the work in question.

3. A work permit or other approval to take employment issued by the Home Office or the UK Border Agency, when produced in combination with either a passport or another travel document endorsed to show the holder is allowed to stay in the United Kingdom and is allowed to do the work in question, or a letter issued by the Home Office or the UK Border Agency to the holder or the employer or prospective employer confirming the same.

4. A certificate of application issued by the Home Office or the UK Border Agency to or for a family member of a national of a European Economic Area country or Switzerland stating that the holder is permitted to take employment, which is less than six months old, when produced in combination with evidence of verification by the UK Border Agency employer checking service.

5. A residence card or document issued by the Home Office or the UK Border Agency to a family member of a national of a European Economic Area country or Switzerland.

6. An application registration card issued by the Home Office or the UK Border Agency stating that the holder is permitted to take employment, when produced in combination with evidence of verification by the UK Border Agency employer checking service.

7. An immigration status document issued by the Home Office or the UK Border Agency to the holder with an endorsement indicating that the person named in it can stay in the United Kingdom, and is allowed to do the type of work in question, when produced in combination with an official document giving the person’s permanent national insurance number and their name issued by a government agency or a previous employer.

8. A letter issued by the Home Office or the UK Border Agency to the holder or the employer or prospective employer, which indicates that the person named in it can stay in the United Kingdom and is allowed to do the work in question, when produced in combination with an official document giving the person’s permanent national insurance number and their name issued by a government agency or a previous employer.