The UK Border Agency is cracking down on illegal working and the penalties for employers can be prison or heavy fines. So take care you’re making all the right checks
Recent press reports about the crackdown on illegal working by the UK Border Agency (UKBA) at the 2012 Olympic Games site in Stratford, east London, have acted as a timely reminder for construction employers of the importance of checks on individuals’ right to work in the UK. The reports claim that 93 arrests were made and 23 people were removed from the UK.
The UKBA has confirmed that it is now based permanently at the Olympic site and is working with the employers/contractors to advise them on the appropriate checks to carry out to prevent illegal working.
With housebuilders likely to increase their workforce this year, it is quite probable that a number of new recruits will be illegal immigrants seeking to gain work by means of false documentation.
There are a number of straightforward checks construction firms can carry out to avoid falling foul of the rules. The UKBA has published guidance entitled Prevention of Illegal Working, which is available on its website. It advises employers on which documents will establish a right to work in the UK, providing them with a potential statutory defence against civil penalties. There are two lists of documents, lists A and B. List A documents are generally for those with no restrictions on their right to work. Documents generally found under list B are for those whose right to work is limited by time.
The importance of getting it right is demonstrated by the potential penalties. If you employ an illegal worker, you could be liable to pay a civil penalty of up to £10,000 per illegal worker; and you face prosecution for knowingly employing an illegal worker. If convicted, you may end up with an unlimited fine and/or up to two years in prison.
You may still be required to pay a civil penalty if it is “reasonably apparent” that the document(s) provided are false.
The checks need to be undertaken before employment begins and, if an employee has temporary immigration status, you need to carry out follow-up checks at least every 12 months. Failure to do so may lead to loss of your statutory defence and may make you liable to pay the civil penalty for each illegal worker.
The same checks and the same methods should be used for all individuals regardless of nationality
When carrying out the checks, employers must see the original documents. It is important to check that photographs are consistent with the appearance of the applicant, and that dates and passport numbers are consistent across the documents. You should check the expiry date of any limited leave, visa or passport and check any UK government endorsements or stamps to ensure that the employee does have the right to carry out the work they are applying for.
In addition, carefully check and satisfy yourself that documents are valid and genuine. Ask yourself, do the documents appear to have been tampered with or are they thicker than you would expect? If you receive documents containing different names, ask for further documentation to explain the inconsistency – for example, a marriage certificate.
Make sure you retain copies including the front cover, pages containing the holder’s personal and biometric details and any UK government endorsements or stamps.
You also need to ensure that you do not discriminate against individuals when carrying out the document checks. The same checks and the same methods should be used for all individuals regardless of nationality. If you do discriminate, you could find yourself in an employment tribunal rather than facing a civil penalty for not carrying out the correct checks.
The UKBA provides an employers’ helpline, which gives general advice about the prevention of illegal working. In addition, if you are in doubt about the validity of documents, the UKBA offers an employers’ checking service. Legal advice should also be sought if you are still unclear on what action to take after checking the documents.
This is the time to be updating your recruitment and right-to-work policies and increasing awareness within your organisation of the need for appropriate document checking to establish eligibility to work. The penalties and publicity of getting it wrong could be both costly and damaging to your organisation.
Paula Cole is a partner in the Employment and Pensions Group for Beachcroft