UK: Immigration Checks on Staff

Have you checked the Immigration status of your staff? If not, your business – and you personally – could be prosecuted and fined up to £5,000 per illegal employee, even if you had no idea they were not allowed to work here. Prosecutions of this kind are now becoming much more common; any illegal staff can also be removed by the immigration authorities without notice, which could have a serious effect on your business.

How to protect your business – new staff

The only way to protect your business is to ask all new staff to produce certain documents from which you can check their immigration status. Until 1st May 2004 only one document was needed; now the requirements are more complicated.

If a "secure document" is produced, e.g. a UK or EU passport, that is enough on its own. If the employee cannot produce a "secure" document, they must show you an official document with their National Insurance number on it, plus an additional document such as a full UK birth certificate. For full details, see the Comprehensive Guidance document at www.ind.homeoffice.gov.uk entitled "Preventing Illegal Working".

You need to check that the documentation looks genuine and take a copy. If it turns out that the person is working illegally, you will only escape prosecution if you can produce the copy, so keeping it safe is essential. It is also important to remember that even if you have kept a copy of the right document, you can still be prosecuted if you later find out that the employee is actually working illegally and you do not take action.

Look at the photograph and the date of birth and check that they tally with the person in front of you. Also check that the document (and any visa in it) has not expired, that any official stamps seem genuine, and that there are no discrepancies in the names. There is a useful guide to Home Office stamps on its website under "UK passport stamps".

• There is no need to make checks for staff who started work before 27.01.97 as the offence does not apply.

• For staff who started between 27.01.97 and 30.04.04, check documents as soon as possible if you have not done so already. We believe that only one document is required but the Home Office have not made the position clear and unfortunately the "old" list of acceptable documentation is no longer available online. We recommend that you take advice before checking pre-30^th April staff.

• For staff who started work after 30.04.04, also check documents as soon as possible. Two documents may be required – see the guidance document mentioned earlier.

If any of your staff cannot produce the right documents, talk to us before dismissing them, as you will need to follow the right procedure in order to avoid claims for unfair dismissal or race discrimination.

It is essential to apply the same requirements to all prospective and current employees. Do not be tempted to screen only people who have a foreign connection or accent: you could be sued for race discrimination. Follow the Government’s Code of Practice (see "Code of Practice" on the website).

From 1 May 2004, ten more countries joined the EU and their citizens acquired the right to come to the UK to work. If they can produce their passport or other listed documents to prove citizenship, you can employ them. You must, however, make sure that they register with the Home Office once they have found work with you, unless they are from Malta or Cyprus. The countries whose citizens must register to work here are Poland, Lithuania, Estonia, Latvia, Slovenia, Slovakia, Hungary and the Czech Republic.

This article can only be a very brief introduction to this topic, and you should always make sure you check the exact requirements of the Home Office and/or take advice from us, before dealing with any individual case. For further advice please contact Margaret Thirlway. Margaret is a member of the Immigration Law Practitioners’ Association.

©Pictons 2004.

Pictons Solicitors LLP is regulated by the Law Society. The information in this article is correct at the time of publication in December 2004. Every care is taken in the preparation of this article. However, no responsibility can be accepted to any person who acts on the basis of information contained in it. You are recommended to obtain specific advice in respect of individual cases.