The UK Border Agency (‘UKBA’) has recently updated their guidance on preventing illegal working  in the UK. This guidance explains in detail the checks that employers must carry out to ensure that a person has the right to work in the UK and it has been updated with a view to making it easier for employers to use. A number of the key changes are summarised below:

1. Civil Penalties and Sponsor Licence

If an employer is found to be employing an illegal worker, a civil penalty of up to a maximum of £10,000 for each illegal worker can be imposed by the UKBA. The guidance has been updated to provide that where an employer applies for a Tier 2 licence to sponsor workers, the UKBA will refuse the application if any of the following apply:

  • If the employer or anyone involved in the day to day running of the business has been issued with a civil penalty for having illegal workers in the previous 12 months;
  • If the fine imposed by the UKBA was set at the maximum limit of £10,000 or if the fine was for a repeat offence the application will be refused in the following circumstances:

i. the fine was paid within the time limit and the employer makes their application to become a sponsor within 6 months of the date the fine became payable;

ii. the fine was paid late and the employer makes their application to become a sponsor within 12 months of the date the fine became payable;

  • If the fine is for a first offence and is paid late and the employer applies within 6 months of the date the fine became payable;
  • If an outstanding fine has not been paid.

This places even more importance on ensuring that illegal working checks are carried out properly. The rules above could have significant consequences for employers that would like to become a sponsor in order to employ non-EEA workers in the UK.

Work Restrictions on Students

The guidance has also been updated to explain the working restrictions placed on non-EEA students regarding the number of hours they can work.

The work restrictions on students depend on when the student was granted leave to remain in the UK and the type of course that they are studying.  For example;

If the student applied for their visa after 4 July 2011, they can work 20 hours a week during term time and full time outside of term time if:

  • they are studying a foundation degree or degree level courses at QCF or NQF level 6 or higher and with a recognised body or a body that receives public funding as a higher education institution;
  • they are on a short-term study-abroad programme in the UK whilst enrolled with an overseas higher education institution;

However, if the student applied for their visa after 4 July 2011 and they are:

  • studying at below degree level with a recognised body or a body that receives public funding as a higher education institution; or
  • studying at a minimum of QCF or NQF level 3 with a publicly funded college where the college is a highly trusted sponsor. If the college is not a highly trusted sponsor the minimum level of study is QCF or NQF level 4.

they can work up to 10 hours during terms time and full time during vacations.

2. Biometric Residence Permits (‘BRP’)

The UKBA has been issuing BRP cards to non-EEA nationals, since November 2008. However, the UKBA has stated that there will be a significant increase in the number of BRPs issued in 2012 as they are being issued to those with indefinite leave to remain. BRPs are being used to replace Immigration Status Documents. Therefore, the UKBA has updated the guidance to cover the increase in BRPs.

Employers should be aware that List A (documents that show that the holder has an ongoing right to work in the UK) has been updated to include a BRP which indicates that the person named in it is allowed to stay indefinitely in the UK or there is no time limit on their stay in the UK.

Employers should also note that when they are carrying out document checks in accordance with List A and List B, that expired BRPs are not considered acceptable as evidence of right to work.

In summary, as always, it is imperative that employers carry out the correct document checks to show that the individual has the right to work in the UK, not least because of the civil and criminal penalties that can be imposed in respect of illegal working. To assist with the document checks, the UKBA has included an employer’s right to work checklist which will often act as a useful starting point.