Today new laws will introduce changes to the way in which employers are required to check the entitlement of employees and prospective employees to work in the United Kingdom.
At the same time a new points based immigration system (similar to that operating in Australia) will be introduced over the next 12 months. There are 5 Tiers to the new system and Tier 1, relating to highly skilled individuals commences today. Tier 2, relating to skilled workers with a job offer to fill gaps in the labour market, is expected to come on line in Autumn 2008.
The new laws do not greatly alter an employer's responsibilities, as they are already required to check their prospective employee's right to work in the UK in accordance with the Asylum and Immigration Act 1996. However, in light of the new laws, we make the following recommendations:
- Employers must ensure they carry out proper checks against original documentation prior to employment commencing. If the employee has time limited immigration status, employers must carry out repeat document checks at least once a year.
- Employers must retain copies of documents checked for at least 2 years after the employment has ended.
If an employer inherits staff following a TUPE transfer, the relevant checks must be carried out within 28 days of the transfer date.
Certain provisions contained in the Immigration, Asylum and Nationality Acts 2006 come into force (under the Immigration (Restrictions on Employment) Order 2007) today. These provisions replace section 8 of the Asylum and Immigration Act 1996 which relates to pre-employment identification checks.
The new laws introduce:
- A system of civil penalties for employers who employ illegal migrant workers up to a maximum of £10,000 per illegal employee.
- A continuing responsibility for employers of migrant workers who have time limited immigration status to check their ongoing entitlement to work in the UK. Repeat document checks must be undertaken at least once a year where employees have limited leave to enter or remain in the UK.
- A new criminal offence for employers who knowingly employ illegal migrant workers. This offence carries a maximum two year prison sentence and/or an unlimited fine.
Under the new law, employers can rely on a statutory defence against conviction if they can prove that they have validly checked and retained copies of the relevant employee documentation listed in the schedule to the Immigration (Restrictions on Employment) Order 2007 (see link: http://www.opsi.gov.uk/si/si2007/uksi_20073290_en_1).
To rely on the statutory defence, employers must also be able to demonstrate that when checking the relevant documentation, they have complied with the following legal requirements:
- All reasonable steps were taken to check the validity of the documents.
- Copies are retained for not less than two years after the employment has ended.
- They are satisfied that any photographs are photographs of the prospective employee.
- If a document contains a date of birth, they are satisfied that it is consistent with the appearance of the prospective employee.
- Reasonable steps have been taken to ensure that the prospective employee is the rightful owner of the document.
- If the document is not a passport or other travel document, copies of the whole document have been retained.
- If the document is a passport or other travel document copies of the front cover must be retained as well as pages containing: personal details (including nationality); photograph; signature; date of expiry; and information indicating that the holder has an entitlement to enter or remain in the UK and undertake the work in question.
In anticipation of the new laws coming into force the Borders and Immigration Agency has published its Prevention of Illegal Working Code of Practice on 'Civil Penalties for Employers' as well as Summary Guidance for Employers (copies can be located here: http://www.bia.homeoffice.gov.uk/sitecontent/documents/employersandsponsors/guidancefrom290208/). The Code sets out how the level of civil penalty is likely to be determined and also provides a number of helpful case scenarios. Whilst not imposing any legal obligations on employers, the Code can be used as evidence in legal proceedings and will be taken into account by the Courts.
It is therefore worth noting that the Code also states that "employers who acquire staff as a result of a TUPE transfer are provided with a period of 28 days grace to undertake the appropriate document checks". This strongly suggests that from today employers will become liable for employing illegal migrant workers where they have inherited them following a TUPE transfer. The only concession for employers is the 28 day "grace period" following the transfer in which up-to-date checks can be made. Employers who fail to comply with this requirement (and as a result continue to inadvertently employ an illegal migrant worker) may therefore become liable to a civil penalty of up to £10,000 if prosecuted.