Hiring Migrant Workers: Make Sure You Know The Law

Businesses face severe penalties if they hire illegal migrant workers, following what the Home Office describes as the biggest immigration shake-up for 40 years, as Chris Maddock explains.

The government has launched a comprehensive programme to reform Britain's immigration controls. Now businesses must source migrant labour through legal means or face severe penalties.

Employers should familiarise themselves with how these changes, under the points-based system and the civil penalty regime will affect recruitment and employment practices.

A points-based system

With effect from 29 February 2008, a points-based system began to operate in the UK. This is intended to enable the UK to control immigration more effectively, tackle abuse and identify the most talented workers.

In order to sponsor migrants, employers will need to make an application to the Home Office, satisfy the requirements for the particular migrants and accept responsibilities to help immigration control.

The new system will consolidate approximately 80 existing work and study application routes into five tiers:

• Tier 1 – Highly skilled individuals to contribute to growth and productivity
  
  
• Tier 2 – Skilled workers with a job offer to fill gaps in the UK labour force
  
  
• Tier 3 – Limited numbers of low skilled workers needed to fill temporary labour shortages
  
  
• Tier 4 – Students
  
  
• Tier 5 – Youth mobility and temporary workers
  
  

For each tier, applicants will need sufficient points to gain entry or leave to remain in the UK. Points will be awarded according to what the government hopes are objective and transparent criteria.

A person who acquires the required number of points will have fulfilled all the requirements of the specific category and qualify to enter the UK under the applicable immigration status.

Employers and civil penalties

Under the new system of civil penalties, employers who negligently hire illegal workers could face a maximum fine of £10,000 for each illegal worker found at a business. If employers are found to have knowingly hired illegal workers, they could incur an unlimited fine and be sent to prison for up to two years.

In order to avoid the civil penalty employers must establish a "statutory excuse" by way of a defence against liability for employing an illegal worker. Employers can establish such a defence by checking and copying certain original documents belonging to that employee when their employment begins. The legislation sets out a long list of documents that form acceptable evidence of a person's legal right to work in the UK.

There are two lists of documents: List A and List B. Individuals with the right to work in the UK indefinitely will be able to produce documents from List A which include a UK or EEA passport.

Individuals who may only be allowed to stay in the UK for a time-limited period will be able to produce a document from List B, which includes a passport or travel document endorsed to show that the holder is allowed to stay in the UK and allowed to carry out the type of work in question.

The employer must satisfy himself that the individual is the rightful holder of the documents they present. This will involve checking photographs, dates of birth and expiry dates and retaining a copy of these documents.

The new arrangements for establishing the defence apply to those employees who start work on or after 29 February 2008. An employer will still be liable for prosecution under the Asylum and Immigration Act where they employed illegal migrants between 27 January 1997 and February 28 2008 and did not establish the statutory defence at the point of recruitment.

Employers who acquire employees as a result of a transfer of undertakings are provided with a grace period of 28 days to undertake the appropriate document checks following the date of transfer.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.