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.