Two illegal workers found at Rising Moon takeaway”. These are just two of the recent headlines on the UK Border Agency (UKBA) website, which highlight its ongoing and vigorous enforcement programme against illegal working, which was one of the key reforms of the immigration system put into place by the last Labour government.

The new Prevention of Illegal Working measures were implemented in tandem with the introduction of the new Points Based System in 2008, in a twin track approach to cut down illegal migration and perceived abuse of the immigration system. With foreign national temporary and casual workers making up significant numbers of employees in the catering, licensing and hotel trades, these industries are particularly targeted by the UKBA enforcement teams, and businesses operating in them can be particularly vulnerable to raids and investigation. Apart from financial and in some circumstances criminal penalties that may result from the UKBA discovering an illegal worker working for you, there can also be serious consequences to your business’ reputation- as the UKBA publishes the full list of employers who have received civil penalties on their website (and may also “feature” a particular business in one of its news articles). For employers who are licensed sponsors of non-EEA migrants under Tier 2 of the Points Based System, the consequences can be even more serious - in a worst case scenario this can lead to removal of the licence itself, which would mean that all existing Tier 2 migrants’ employment would have to be terminated and they would have 60 days to find new sponsorship or leave the UK.

As such it is vital that operators of licensed premises are fully informed of the steps they must take when hiring new employees to check that they are eligible to work in the UK, and the ways they must document this.

Legal framework

Since January 1997, employers have been obliged under Section 8 of Asylum and Immigration Act 1996 to check that each prospective employee is entitled to take the job in the UK before they start work.

On 29 February 2008, sections 15–25 of the Immigration Asylum & Nationality Act 2006 replaced Section 8 of the 1996 Act. The 2006 Act creates a new criminal offence (Section 21) and a new civil offence (Section 15). The new law only applies to employees who begin employment on or after 29 February 2008.

A person commits a criminal offence under section 21 of the 2006 Act if they employ someone knowing that the employee is not entitled to do the work in question. If found guilty, they can be liable to a prison term of up two years and/or an unlimited fine.

Section 15 of the 2006 Act provides that if an employer employs someone who is not entitled to take the employment in question, they commit a civil offence and will be liable to pay a fine of up to £10,000 per employee.

An employer can establish a “Statutory Excuse” (a defence) to the civil offence if, before the employment begins, they see, check and copy specified original documents, such as the employee’s passport and work permission.

If an employee has a time limit on their permission to remain in the UK, to keep the Statutory Excuse, the employer must carry out checks on the employee’s documents at least every 12 months or sooner if their permission to remain expires earlier. The Statutory Excuse will not apply if an employer knows, at any time during the period of the employment, that the employee is working illegally.

Checking documents

To establish the Statutory Excuse an employer must:

  1.  Ask for original documents to be brought to the premises before employment begins.
  2.  Check the documents:
  1.  Be satisfied that the document is valid and genuine, has not been tampered with and belongs to the owner (you would only be liable to a civil penalty if it was ‘reasonably apparent’ to an untrained person that the document is a forgery);
  2.  Check the most recent relevant visa or leave to remain stamp to see if the prospective employee is able to do the type of work you are offering;
  3.  Check that the expiry dates of any limited leave to enter or remain have not passed;
  4.  Be satisfied that any photographs in the documents are of the prospective employee;
  5.  Be satisfied that the prospective employee’s appearance is consistent with the date of birth stated in the documents; and
  6.  Take reasonable steps to confirm that the employee is the rightful owner of the documents. If the documents show different names, obtain evidence of the change of name (eg marriage or divorce certificate).
  1.  Copy the documents and retain them in a form that cannot be altered. Each copy should be signed, dated and preferably the time of copying confirmed in writing, on the day of checking (i.e. before employment commences).

(a) Passports – you must copy:

(i) the front cover;

(ii) any pages containing the individual’s personal details;

(iii) any page that provides details of nationality, their photograph, date of birth, signature and date of expiry; and (iv) any page containing UK Government endorsements, noting the date of expiry and any relevant UK immigration endorsement.

b) Other documents should be copied in their entirety (eg each side of a Biometric residence permit should be copied)

There are two lists of specified documents (Lists A and B) which can be found on the UK Border Agency’s website: http://www.ukba.homeoffice.gov.uk/ sitecontent/documents/employersandsponsors/ preventingillegalworking/

If the employee has no time limit on their stay in the UK, they should be able to produce a document, or combination of documents, from List A. If the employee’s permission to remain is limited in time, they should produce a document, or combination of documents, from List B.

Only the types of documents specified in these lists will establish the Statutory Excuse; and we strongly recommend that production of the relevant documents prior to employment and on an ongoing basis as required by the legislation should be made a condition precedent of employment, as confirmed in the offer letter and contract.

It is also important that document checking is carried out in a non-discriminatory way, in particular that it is carried out on all new employees, whether they are British or foreign nationals.

Operators should note that a separate but similar civil penalty system applies for employers who hire nationals of ‘A8’ and ‘A2’ countries who do not have the relevant work permission. ‘A8’ and ‘A2’ countries are those East European countries which joined the EU in May 2004 and January 2007 respectively. While nationals of these countries have a largely unrestricted right to enter the UK (and to engage in selfemployment) they will often be required to obtain specific work permission in order to be employed here. For A8 nationals this is the Workers Registration Scheme and for A2 nationals, many will be required to obtain work permits, which will be evidenced by an Accession Workers Card. This is a complicated area and operators should make sure they are fully aware of the relevant provisions.

Another area of confusion can be non-EEA national family members of EEA nationals who do not have a valid 6 month family permit visa and have an EEA residence card application pending with the UKBA (the visa has often expired because of the length of time that residence card applications can take to be decided). In this situation, an employer is required to see and copy a Certificate of Application issued within the last 6 months and to contact the Employer Checking Service to verify that the application is pending. We have serious concerns as to whether this conflicts with such individuals’ right to work under EU free movement law.