Now more than ever, employers have to ensure that they carry out the government-prescribed document checks when hiring new employees.
Failing to do so exposes employers to high civil penalties and since 12 July 2016, possible criminal prosecution.
The statutory excuse
The law does not explicitly require employers to perform document checks on all new employees.
If an illegal worker has unintentionally been hired, however, an employer can rely on the ‘statutory excuse’ and escape a civil penalty if it can establish that it has complied with any prescribed requirements in relation to the employment.
Employers can now also be charged with a criminal offence punishable by up to five years imprisonment in circumstances where they have “reasonable cause to believe” that an employee did not have a right to work.
It remains to be seen how widely the phrase “reasonable cause to believe” will be interpreted by the courts. It could foreseeably extend to cases of wilful blindness, where an employer has failed to adequately check the immigration documents of a new employee.
An employer that follows the prescribed requirements is likely to escape civil and criminal punishment in all situations, unless there is some evidence that the employer actually knew the employee did not have the right to work.
The prescribed requirements
The Immigration (Restrictions on Employment) Order 2007 (“the Order”) sets out the ‘prescribed requirements’ that must be followed to rely on the statutory excuse.
The document-checking process that employers and human resource staff must comply with is divided into three steps:
- obtain original versions of one or more acceptable documents;
- check the documents’ validity in the presence of the holder; and
- Make and retain copies and record the date of the check.
On 12 July 2016, the Home Office produced its revised version of ‘An employer’s guide to right to work checks’ for the assistance of employers (“the Guide”).
The Home Office also provides a Right to Work checklist online to enable employers to check the documents that must be produced in any situation.
- Obtain documents
To avoid criminal and/or civil penalty, an employer must request that every new employee produce the original document, or combination of original documents, itemised in List A and List B of the Order.
List A applies to employees who are not subject to immigration control and have no restrictions on their stay in the United Kingdom.
The documents in List A which demonstrate an indefinite right to work, include:
- the passport of a British citizen;
- a birth certificate issued in the UK which includes the name of at least one parent or adoptive parent or a certificate of registration or naturalisation as a British citizen, together with an official document displaying the person’s permanent National Insurance Number and their name, which has been issued by an employer or government agency;
- a document certifying permanent residence or a registration certificate issued to a European Economic Area (“EEA”) national;
- a Permanent Resident Card issued to an EEA national;
- a current Biometric Resident Permit indicating an indefinite leave to stay in the UK.
List B itemises the original documents that must be produced by employees whose permission to enter and remain in the UK is time limited.
If an employee is able to supply a document from List A, the statutory excuse will apply for the entire period of employment.
Where an applicant supplies a document from List B, an employer is required to carry out supplementary checks at set intervals.
Follow up checks must be conducted either when the permission displayed on the document has expired or after six months in circumstances where a Positive Verification Notice has been provided.
If, during a follow up check, the immigration status of an employee has changed and they can now produce a document listed in List A, the statutory excuse will then remain valid for the remainder of the employee’s employment.
2. Check documents
To avail themselves of the statutory excuse, employers must take all reasonable steps to ascertain the validity of the original documents that they are provided, and make certain that the rightful owner has produced them.
All documents containing an expiry date must be current, save for any document that shows the holder is a British citizen or national of an EEA country.
Any work restrictions that are shown on the document must also be checked.
International students, for example, often have a limited right to work outside of their university semester. Employers hiring international students with these restrictions are required to request evidence of their employee’s academic term and vacation in order for the employer to rely on the statutory excuse.
Any photographs or dates of birth displayed on the documents produced should be compared against the appearance of the person presenting the document.
An employer who has accepted a document that clearly does not belong to the holder, is obviously false or demonstrates that the person does not have permission to work in the UK will not be able to avail themselves of the defence.
If there is any difference in names across the documents, an employer also needs to confirm the reasons for the difference (by viewing marriage certificates or divorce decrees, for example).
In some cases (where, for example, an employee has produced a Certificate of Application, Application Registration Card or has an application or appeal pending) employers are required to contact the Home Office to confirm that an employee has a right to work.
When the documents have been checked and are confirmed to be authentic, employers must keep accurate records of the documents that have been sighted.
For passports and other travel documents, employers must make a copy of the following pages:
- any page containing the holder’s personal details, including nationality;
- any page containing the holder’s signature;
- any page containing either the expiry date of the document or the date when permission to work expires; and
- any page containing information indicating the holder can enter or remain in the United Kingdom to undertake the work in question.
For all other documents, employers must retain a copy of the document in full, including both sides of any Biometric Resident Permit or Residence Card.
Whole copies must be kept in a form that cannot easily be altered.
These records must be retained for a period of not less than two years after the employment has come to an end. After this it is advisable to destroy the documents or an employer may be in breach of data protection rules.
Employers must also keep a record of the date the document was checked.
Complying with the prescribed document checks can be complicated, and the consequences of non-compliance best avoided.