The UK Border Agency has recently issued new guidance for employers on the Prevention of Illegal Working. We have also seen an increase in audits carried out by the UKBA, both pre-arranged and unannounced. Therefore, it is essential for all employers to ensure that your illegal working checks are being carried out in accordance with your obligations. Employers must conduct the checks before an individual begins working, and keep records of the required documentation, see previous Law-Now for details.

The evidence required to order to rely on the statutory excuse is not always straightforward. For example, the new Guidance clarifies the policy in relation to Indefinite Leave to Remain (ILR) endorsements. It confirms that an ILR stamp in an expired passport can be accepted as satisfactory evidence of right to work. However, this is not the case with the Right of Abode. A certificate of entitlement to the Right of Abode is only acceptable as evidence of the right to work in the UK if produced in a valid passport. Situations such as this can cause confusion, and result in noncompliance by employers who are not aware of the detail of these provisions.

Further, for employees who began working on or after 29 February 2008, employers must not only carry out checks prior to their first day, but also at least every 12 months thereafter, while the individual continues to have a limitation on their leave to remain in the UK. This would include those with the Right of Abode, whose leave lapses when their passport expires. Therefore, it is critical to carry out these annual checks so that employers can continue to rely on the statutory excuse. If employers fail to carry out the necessary checks, the UKBA can impose a civil penalty of £10,000 per illegal worker and the company's name would also appear on the UKBA's website, stating the level of the civil penalty issued.

Having thorough illegal working check procedures in place should protect employers from a potential fine and reputational damage.