We use cookies to give you the best online experience. By using our website you agree to our use of cookies in accordance with our cookie policy. Learn more here.Close Me
Baroness Scotland, the Attorney General, has provided employers
with a salutary warning this week. She has been fined £5,000
by the UK Border Agency for employing a non-EEA national who was
not permitted to work in the UK, breaching the law which she helped
to draft. Her name will also appear on the register of employers of
illegal migrants, which names and shames non-compliant employers.
As she did not keep copies of the documents she allegedly checked
to verify her housekeepers right to work in the UK, she could not
establish a Statutory Excuse against the penalty.
This high profile case shows how important it is that an
employer conducts illegal working checks before any employee begins
working and keeps the necessary records. Given the increased
activity of the UK Border Agency's compliance teams, employers
will only be able to avoid the risk of fines and reputational
damage by following well defined and rigorous processes.
Primary Obligations: Illegal Working Checks
Before an individual may begin working, each employer must check
that the individual has the right to work in the UK. The employer
must view a document as specified by legislation, known as List A
or B, and verify:
the photograph is a true likeness of the employee;
the date of birth matches the appearance of the employee and is
consistent on all documents;
any name changes are corroborated by evidence, such as a
marriage or divorce certificate.
If the employee is an EEA national or has no restriction on
their leave to remain in the UK, the employer must view a document
stated in List Asuch as an original British passport. The
employer must take a copy or scan of the front cover of the
passport and the data page, which should also show their photograph
and state the full name, nationality, date of birth and contain the
individual's signature.
If the employee has a restriction on the time they may remain in
the UK, the employer must view original documents as stated in List B. This will include, for example, an
original passport endorsed with a UK Ancestry visa, and an
accompanying letter of approval from the Home Office. In the case
where the individual's status is clear from the endorsement,
such as Tier 1 (General), the original passport with the
endorsement is sufficient (a secondary piece of evidence is not
required).
The employer must keep the above copies for the full duration of
employment and for an additional two years after the employee
leaves employment.
Ongoing Obligations: Annual Checks
Employees recruited on or after 29 February 2008, who have a
limitation on their right to remain in the UK should provide their
documents to their employer at least once every 12 months so that
the Statutory Excuse can be "refreshed". This would
include, for example:
Work permit holders / Tier 2
Students / Tier 4
HSMP / Tier 1
Spouses/unmarried partners / civil partners of British
citizens.
The employer must repeat all the verification steps, recheck the
original documents and take copies as above. These fresh copies
must be signed and dated by the employer and kept for the full
duration of employment plus an additional two years. Procedures
should be in place to track the date by which the annual check must
be undertaken to ensure that the employer can rely on the Statutory
Excuse.
Penalties
Fines are calculated on a sliding scale, and can be as a high as
£10,000 per illegal worker. Baroness Scotland has been issued
with a fine of £5,000 for not keeping the required copies.
The fine can be at the maximum amount where the employer made no
effort to check documents, or "knowingly" employs an
illegal worker. In these cases, the employer could also face
additional criminal prosecution with further fines and up to two
years in prison.
Conclusion
This case represents the first high profile scalp under the new
legislation and shows how easy it can be for an employer of one to
fall foul of the rules, let alone large employers without defined
processes in place. Checking documents, resolving any
irregularities and taking copies before the new employee starts his
job are key to employers hoping to avoid any unfortunate
headlines!
If you would like further information in relation to illegal
working and annual checks, please contact a solicitor in the
Immigration team for assistance.
This article was written for Law-Now, CMS Cameron
McKenna's free online information service. To register for
Law-Now, please go to www.law-now.com/law-now/mondaq
Law-Now information is for general purposes and guidance
only. The information and opinions expressed in all Law-Now
articles are not necessarily comprehensive and do not purport to
give professional or legal advice. All Law-Now information relates
to circumstances prevailing at the date of its original publication
and may not have been updated to reflect subsequent
developments.
The original publication date for this article was
29/09/2009.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
On 31 July 2012, a mere two months after the General Court handed down its judgment in the MasterCard case, the European Commission (the "Commission") sent a supplementary statement of objections ("SSO") to Visa in relation to the multilateral fall-back interchange fees ("MIFs") it charges for transactions with consumer credit cards in the European Economic Area ("EEA") and domestic point of sale transactions in eight EU Member States
The United Kingdom has a points-based system for foreign nationals from outside the European Union who wish to move to the UK.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
