Onus falls on employers to prevent illegal working

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The Immigration Asylum and Nationality Act of 2006, which came into force on the 29 February 2008 places employers under threat of substantial fines and even imprisonment if they are found guilty of employing an illegal worker.

Under the new rules, if an employer employs an illegal worker they could be:

• Fined up to £10,000 per illegal worker; and
• Prosecuted for the offence of knowingly employing an illegal worker and if found guilty face an unlimited fine and/or a prison sentence of up to two years.

What is a definition of an illegal worker?

An illegal worker is defined as a person who does not have current and valid permission to be employed in the UK. Alternatively a person who does not have valid permission to do the type of work the employer is offering.

Does the employer have a defence?

If the employer has mistakenly employed an illegal worker they can claim a “statutory excuse”. For such a defence to be valid the employer will need to demonstrate that certain original documents have been checked and copied before the employee started work. You should also undertake follow-up checks on an annual basis.

The actual documents that you need to check are identified in the UKBA’s Summary Guidance for Employers. Visit their website at:-

www.bia.homeoffice.gov.uk/employers/preventingillegalworking

Broadly the documents are under three lists:

• List A: documents which establish a statutory excuse for the employee’s employment with the employer. That is to say that they have the right to live and work in the UK on a permanent basis.
• List B: documents which establish a statutory excuse to live and work in the UK for a limited period.
• Documents which do not provide employers with a statutory excuse.

What should employers do?

The key action is to check the UKBA Guidance notes, be sure that you understand what is required and then to take copies of relevant documentation and to keep them safe. Records should be kept for two years after the employees employment has ceased.

What checks do I need to undertake for existing employees?

If you carried out the employment check required under the previous legislation for employees recruited since 27 January 1997 then there is no need to carry out further checks on existing employees. The new requirements only apply to employees who commenced work from 29 February 2008.

It is essential that you check their records as you could still be liable for criminal prosecution if you did not verify and retain copies of documents required under the old regime. Essentially it would be sound practice to undertake an audit of all such records.

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