Employers have a duty to prevent illegal working in the UK by carrying out certain document checks on potential employees to make sure that they are lawfully allowed to work in the UK - and this needs to do be done before they are employed!
If it is found that the employer has not carried out document checks as specified in the Government's Guidelines, a hefty financial penalty of up to £20,000 could be imposed for each illegal worker.
However, it is important to note that, if it becomes apparent that an employee is working illegally, but it can be proven that document checks were correctly carried out, an employer should not receive a civil penalty for that worker.
How do you carry out these checks and what documents do you need to see?
There are 3 basic steps to conducting a "right to work" check.
Remember three key words:
Obtain: make sure the right documents are received as set out in Lists A and B (see below).
Check: the documents received must be the originals and up to date
Copy: make copies of the original documents to keep on file.
As their legal duty, employers should ask to examine all original documents on List A or B as set out in the Government's Checking Service
Documents in List A show the potential employee is not subject to immigration control and restrictions on their residing and working in the UK - such as:
- European nationals
- Family members of European nationals
- Overseas nationals with indefinite leave to remain, or limited to remain but with no probation on employment
- Some, but not all, overseas students (their right to work will be limited during term time)
Documents in List B show that the potential employee's leave to remain in the UK is for a limited period of time and may restrict the type and hours of work. Employers have a legal obligation to carry out checks on employees who fall into this category every 12 months.
Please note that the rules also state that employers must carry out the initial "right to work" check on all potential employees and must not discriminate when doing so.
What if the documents are still with the Border and Immigration Agency?
If this is the case, employers can use the Border and Immigration Agency's employer checking service, which will check someone's legal entitlement to work: www.bia.homeoffice.gov.uk/employimmigrants (you should inform the potential employee that you are using this service).
The Government has announced that there will be changes to the immigration rules for the UK's visa system which will take effect on 24 April 2015. According to the Home Secretary Theresa May, these changes will help Britain to continue to welcome business visitors. However, there have been no announced changes with regard to document checks as yet.
Given the complexities of immigration law and the risks to potential employers of "getting it wrong", it is extremely important that employers seek further information and advice. Either contact the government's checking service: or contact the Border and Immigration Agency on 0845 010 6677.
If you would like to discuss this matter further with us then please don't hesitate to contact us: email: firstname.lastname@example.org or ring: 0115 896 7536 or visit our website www.finchconsultancy.co.uk