Recruitment

by Kate Russell

Eligibility to work in the UK

According to the Home Office, people born overseas account for one in eight of the UK’s working population, creating a variety of issues for employers and placing certain requirements upon them.

This guidance will help you understand what documents you must ask prospective employees to produce if you are to ensure that they can work for you legally and so that you can establish a statutory excuse (‘the excuse’) against payment of a civil penalty.

In 2008 the Government introduced checks to ensure organisation were not employing illegal migrants. The law relating to enforcement of immigration checks is now significantly more stringent.

As an employer, you may be presented with a document, or documents, from one of two lists. Documents provided from List A establish that the person has an ongoing entitlement to work in the UK; documents from List B indicate that the applicant or employee has restrictions on their entitlement to be in the UK. (See also The points-based system.)

An employer who employs someone subject to immigration control who is aged over 16 and is not entitled to undertake the work in question will be liable to pay a civil penalty of up to £20,000 per illegal worker. The act provides that notice of liability to pay a civil penalty of a specific amount can be served by Home Office officials on behalf of the Secretary of State. The penalty will be calculated on a sliding scale (see chart), but the final amount that the employer is required to pay will be determined on an individual basis, according to the circumstances of the case. A Code of Practice has been produced to provide further information. You can appeal against the fine if you wish, but you still have to pay it – and will be prosecuted if you don’t.

If you know that you are employing a person who is not permitted to work, then you will not be entitled to the excuse. In addition, you could be prosecuted for the offence of knowingly employing an illegal worker. Conviction under this offence will carry the potential of an unlimited fine and/or prison sentence of up to two years.

Employees taken on before 29 February 2008

The arrangements for establishing the excuse only apply to those employees who started working for you on or after 29 February 2008. You will still be liable for prosecution under the earlier legislation in cases where you employed illegal migrants between 27 January 1997 and 28 February 2008 and did not establish the statutory defence at the point of recruitment. Equally, if you established a statutory defence for employees taken on before 29 February 2008, this will be retained for the duration of that person’s employment.

Note that if you employed a person before May 2004, you should have carried out checks set out in the 1996 legislation, which are less stringent and include things like National Insurance numbers. However, if you have carried out an audit of employees, including those employed before May 2004, the new rules will apply.

Checks need to be carried out on everyone. Many people from minority ethnic groups who live in the UK are British citizens. The best way to make sure that you do not discriminate in your recruitment practices is to treat all job applicants in the same way.

If you discriminate against someone on racial grounds, then this may be used as evidence against you under race relations legislation before an employment tribunal. You should not employ anyone simply on the basis of his claim to be British, or if you think he appears to be British. Note that there is no upper limit for compensation in cases of unlawful discrimination.

What if an existing employee is an over-stayer?

If an employee does not have permission to work in the UK, this is a fair reason for dismissal. However, the difficulties faced by employers trying to deal with immigration rules were highlighted in one case, Klusova v London Borough of Hounslow. In this case a claim for unfair dismissal was made.

Example

Ms Klusova is a Russian national who was granted leave to remain in the UK until May 2004. She had been employed by Hounslow Council since November 2000. In August 2005, the Council dismissed her, believing that her continued employment contravened immigration legislation. It did not follow the statutory dismissal procedures, and later argued that these did not apply because the dismissal was for breach of a statutory restriction.

At the time of her dismissal, Ms Klusova was in the process of making an application to the immigration authorities to extend her permit. Because she had made this application, she was entitled to work in the UK. In March 2005, Ms Klusova was detained by the police for immigration offences. She was released, subject to the condition that she did not take up employment. Her employer received a copy of the form that set out this condition. They made enquiries with the Home Office and received information that they should not continue to employ her.

The case went to the Court of Appeal. The Court was satisfied that Ms Klusova had made a valid application for leave to remain before her visa expired, and that she could work until that application had been determined. Conditions imposed by an immigration officer following her detention did not cancel her entitlement to work while her application was being considered.

The reason for the dismissal was fair, because the Court accepted that the Council genuinely believed Ms Klusova’s continued employment would breach a legal restriction. Despite this, the dismissal was unfair because they had dismissed her without following any procedure and because there was no actual breach of the law, so the statutory exception did not apply.

Establishing the statutory excuse

Employers can establish the excuse for your prospective employees by checking and copying one, or a specified combination, of original documents. In all cases, the excuse must be established before the employment begins. The repeat checks can only enable you to rely on the original excuse, as the excuse cannot be established after employment has started.

Note

The excuse will not be available if you knowingly employ an illegal migrant worker.

Where you can demonstrate that you have complied with these requirements, you will have established the excuse and may not have to pay the civil penalty, even if it becomes apparent that the employee was working illegally.

The Home Office recommend that you carry out checks on all prospective employees, as this will establish a statutory excuse from paying the civil penalty, provide evidence of an open and transparent recruitment process and ensure that your recruitment practices do not discriminate against individuals on grounds of race.

What documents do I check?

If the individual is not subject to immigration control, or has no restrictions on his stay in the UK, he should be able to produce a document, or a specified combination of documents, from List A. The checks must be made before he is employed and the excuse will then be established for the duration of his employment.

Where the leave to enter or remain in the UK granted to an individual is time-limited, the document or documents provided will be specified in List B. If an individual provides a document or documents from List B, you should carry out specified document checks before his employment begins. Repeat checks are required to retain the excuse. If you don’t carry out the follow-up checks, then you may be subject to a civil penalty if the employee is found to be working illegally.

Establishing an excuse

There are three steps to establish an excuse for every new prospective employee whom you intend to employ.

Step 1

Your prospective employee must provide one of the original documents from List A or List B.

Step 2

Check the validity of the document and satisfy yourself that the prospective, or existing, employee, is the person named in the documents he presents to you. These documents should also allow him to do the work in question. Carry out the following specified steps when checking the documents presented to you by your prospective or current employee:

  • Check that any photographs, where available, contained in the documentation are consistent with the appearance of the employee
  • Check the date of birth listed, where available, to ensure that this is consistent across documents and that you are satisfied that these correspond with the appearance of the individual presenting the document(s)
  • Check that the expiry dates of any limited leave to enter or remain in the UK have not passed; check any UK Government endorsements (stamps, visas, and so on) to see if the individual is able to do the type of work you are offering
  • Satisfy yourself that the documents are genuine and have not been tampered with and belong to the holder
  • If the individual gives you documents which contain different names, ask him for a further document to explain the reason for this (the further document could be a marriage certificate, a divorce decree, a deed poll document or statutory declaration).

Step 3

Make a copy of the relevant page or pages of the document, in a format which cannot be subsequently altered, such as a photocopy or scan. Where an electronic copy is made of a document, it must be made using Write Once Read Many format: for example, on a non-rewritable disk.

In the case of a passport or other travel document, the following parts must be photocopied or scanned:

  • Passports and travel documents – take a copy of the document’s front cover and any page containing the holder’s personal details; in particular, copy any page that provides details of nationality, his photograph, date of birth, signature, date of expiry or biometric details
  • Any page containing UK Government endorsements, noting the date of expiry and any relevant UK immigration endorsement which allows the prospective employee to do the type of work you are offering.

Copy other documents in their entirety. You should then keep a record of every document you have copied. The copies of the documents should be kept securely for the duration of the individual’s employment and for a further two years after his employment has ceased. If you do this, the Home Office will be able to examine your right to the excuse if they detect anyone working illegally for you.

If you employ an employee with a List B document or documents and have not made the follow-up checks required in order to retain the excuse, then you may be liable for payment of a civil penalty if that person is found to be working illegally in the UK.

If you are presented with a false travel document or visa, you will only be liable to pay a civil penalty if the falsity is reasonably apparent. The test for what would be considered to be ‘reasonably apparent’ is if an individual who is untrained in the identification of false documents, examining it carefully, but briefly and without the use of technological aids, could reasonably be expected to realize that the document in question is not genuine. Equally, where a prospective employee presents a document and it is reasonably apparent that the person presenting the document is not the person referred to in that document, then you may also be subject to legal action, even if the document itself is genuine.

If the falsity is not reasonably apparent, or a valid document is presented by the named person, then you will not normally be liable to the payment of a civil penalty.

Employers who acquire staff as a result of a Transfer of Undertakings (Protection of Employment) transfer (TUPE) are provided with a grace period of 28 days to undertake the appropriate document checks following the date of transfer.

If you have carried out these checks and have established that your prospective employee is not permitted to work, you are entitled to refuse employment to that person. It is up to your prospective employee to show you that he is permitted to do the work you are offering.

Knowingly employing an illegal migrant

You will commit a criminal offence if you knowingly employ an illegal migrant. On summary conviction, the maximum penalty will be a fine of no more than the statutory maximum for each person employed illegally and/or imprisonment for up to six months.

Following conviction on indictment, there is no upper limit to the level of fine that can be imposed and you may also be subject to imprisonment for up to two years. The UKVI will prosecute and/or remove from the UK any person found to be working illegally in the UK.

The employer checking service

As an employer, you may be presented with documents that require verification by the Home Office’s employer checking service to establish the excuse.

The service is delivered via a process where an employer is required to complete a form to enable the Home Office to verify any entitlement to work. For all checks through the Employer Checking Service, it is the employers’ responsibility to inform the prospective employee that he may undertake a check on them with the Home Office. To establish or retain an excuse against payment of a civil penalty, the records and documents relating to the check should be retained for examination and submitted to officials upon request.

Employing EEA nationals

Nationals from European Economic Area (EEA) countries and Switzerland can enter the UK without any restrictions. Note that not all EEA nationals can work in the UK without restrictions, so you should not employ any individual on the basis of his claim to be a national from an EEA country without further checks. Ask nationals from all EEA countries and Switzerland to produce a document showing their nationality. This will usually be either a national passport or national identity card. Some nationals from EEA countries and Switzerland may also be able to produce a residence permit issued by the Home Office which confirms their right to reside and work here.

All of these documents are included in List A and may provide you with the excuse against a civil penalty, if checked and copied.

EEA nationals can work in the UK without restriction.

National Insurance and tax arrangements for EEA nationals

Remember that as well as the registration and authorisation schemes set out above, any EEA national you employ will be subject to the same UK tax and National Insurance legislation as any other employee. The HM Revenue and Customs booklet ‘CWG2 Employer Further Guide to PAYE and NICs’ provides more details and you can order this by calling them.