29th February 2008 marked the introduction of new requirements for employers to check the entitlements of those it employs to work in the UK. The new requirements are laid out in the Immigration, Asylum and Nationality Act 2006 (the “2006 Act”). Being subject to requirements to police immigration law is not a new concept for employers who, since the introduction of the Asylum and Immigration Act 1996 (the “1996 Act”), have been required to check the immigration status of those it employs. Under the 1996 Act it is a criminal offence to employ someone who is not entitled to work for them. However, there are a number of significant differences between the 1996 Act and the 2006 Act of which employers need to be mindful.

Individuals employed before 29 February 2008

The provisions of the 1996 Act will continue to apply to individuals employed prior to 29th February 2008.

Under the 1996 Act, it is a criminal offence, punishable by a fine of up to £5,000 (per person illegally employed), to employ someone who is not entitled to work in the UK. To avoid liability under the 1996 Act, it is open for an employer to raise a statutory defence. In order to rely upon this defence, an employer must be able to demonstrate that prior to the commencement of an individual’s employment, they sought to check certain specified documents or combinations of documents that demonstrate a right for an individual to work in the UK. The employer must also have retained copies of the documents provided by the individual in order to rely upon the statutory defence.

Individuals employed on or after 29 February 2008

The 2006 Act applies in respect of all persons employed from 29 February 2008. Under the 2006 Act, it remains a criminal offence to employ an individual who is not entitled to work in the UK, but only if such person is knowingly employed in circumstances where they do not have a right to work in the UK. Where the criminal offence under the 2006 Act is committed, the employer may face significantly higher penalties than under the 1996 Act, namely an unlimited fine and/or a two year period of imprisonment. Where the criminal offence is committed by a company or partnership, any director, manager, secretary or partner is also liable if the offence is committed with their consent or connivance. Unlike the 1996 Act, there is no statutory defence available in respect of the criminal offence under the 2006 Act.

New to the 2006 Act is a civil offence of negligently employing someone who is not lawfully entitled to work in the UK. Where the civil offence under the 2006 Act is committed, the employer may be subject to a civil penalty of up to £10,000. However, the exact level of the civil penalty is dependent upon the employer’s culpability. For example, did the employer carry out some level of test to verify the individual’s entitlement to work in the UK? Has the employer co-operated with the immigration authorities? Has the employer previously employed individuals who do not have the right to work in the UK?

Where an employer is found by the UK immigration authorities to be employing individuals who are not entitled to work in the UK, they will be issued with a civil penalty notice. The employer may then, if able, raise a statutory defence to the civil offence under the 2006 Act.

The UK immigration authority recognises that in situations where the Transfer of Undertakings (Protection of Employment) Regulations 2006 operates so as to transfer the employment of individuals, it would not be practicable for the transferee to verify the right of its new employees to work in the UK prior to its employment of those individuals. Accordingly, guidance relating to the 2006 Act provides that lawyers will be given a period of 28 days from transfer to carry out the necessary checks so as to avail themselves of the statutory defence. However, it should be remembered that no defence exists where an individual is employed in circumstances where the employer knows that they are not entitled to work in the UK.

What do the changes mean in practice?

All employers should continue to carry out appropriate pre-employment checks as before. This means that it is essential to obtain certain documentation from the individual you are proposing to employ before employment commences. The essential difference post-29 February is with regard to the ongoing checks which may be necessary in respect of employees taken on after that date.

If checks are carried out, both before and, where appropriate, during employment this will enable you to establish the statutory defence against the new civil wrong of negligently employing someone who is not lawfully entitled to work in the UK. For the purposes of establishing this defence, ‘appropriate documentation’ falls into two categories:

  •  List A - documents such as passports from EEA countries and entry visas entitling the individual to indefinite leave to remain in the UK, where an individual’s right to work in the UK is not subject to any temporal limitation; 
  • List B - documents such as working holiday visas and work permits, where the individual’s right to work in the UK is subject to a temporal limitation.

Where the document(s) obtained as part of a pre-employment check are found on List A, it is only necessary for you to have checked this documentation pre-employment and to have retained it during the course of the individual’s employment, and for a period of 2 years thereafter.

However, where the document(s) used to verify an individual’s right to work in the UK is found on List B, you are under a duty to check the individual’s entitlement to continue working in the UK every 12 months (unless a subsequent check results in the individual providing a document that may be found in List A). If you find yourself presented with documents from List B you should therefore diarise a follow up check to take place in 12 months because the statutory defence is not available to an employer unless they can show that they carried out such follow up checks as may be required. Again, the documentation provided must be retained throughout the individual’s employment and for a period of 2 years thereafter.

Finally, in addition to obtaining the necessary documentation to satisfy the statutory defence under the 2006 Act, you must also take reasonable steps to check the authenticity of the documentation provided. For example, if a photo ID is provided, does the individual look like the photo provided?