(1) What is the Code of Practice?
On 8 May 2014, the Immigration (Restrictions on Employment) (Codes of Practice and Amendment) Order 2014 (SI 2014/1183) was laid before Parliament. This has brought the Code of Practice for Employers on Preventing Illegal Working into force from 16 May 2014. Therefore is important for employers to be aware of the law and their duty under the law.
(2) What does the law state?
Section 15 (1) of the Immigration, Asylum and Nationality Act 2006 (the Act) states that:
‘It is contrary to this section to employ an adult subject to immigration control if –
(a) he has not been granted leave to enter or remain in the United Kingdom, or –
(b) his leave to enter or remain in the United Kingdom-
(i) is invalid,
(ii) has ceased to have effect (whether by reason of curtailment, revocation, cancellation, passage of time or otherwise), or
(iii) is subject to a condition preventing him from accepting the employment.
Assessing a person’s eligibility for employment including the type of work they can do, and the amount of hours they can work depends on their immigration status.
(3) What checks does an employer have to carry out?
An employer has a duty to carry out document checks on individuals before they are employed, to ensure that they are legally entitled to work in the UK. There are three steps to be followed for potential employees.
An employer must obtain original versions of one or more of the acceptable documents as stated in List A, relevant to those people who have a permanent right to live in the UK. The documents are:
• a British passport
• a European Economic Area (EEA) or Swiss passport
• a permanent residence document issued to an EEA or Swiss national or their family member
• a Biometric Residence Permit (BRP) showing no time limit restrictions, or a permanent residence stamp/endorsement from an individual’s passport.
List B states the documents which may be accepted for checking purposes for a person who has a temporary right to work in the UK and is spilt into group 1 and group 2.
The documents under group 1 are:
• a current passport
• BRP Permit endorsed to show the holder is allowed to stay in the UK and do the work in question, or
• an immigration status document with a photograph together with an official document giving the person's National insurance number and name issued by a government agency or previous employer.
The documents under group 2 are:
• a positive verification notice issued by the Home Office Employer checking service
• a certificate of application, or
• an application registration card stating the holder is permitted to take the employment in question together with a positive verification notice indicating the named person may stay in the UK and is permitted to do the work in question.
For each document an employer must take reasonable steps to check that it is genuine and the person that is producing the document is the rightful holder.
This can be done by checking that the person’s date of birth is consistent and checking any photographs are a true likeness of them. The employer must check that the person’s visa expiry date has not passed and that they are able to continue doing the type of work by checking their BRP, visa or stamps in their passport.
The employer must be satisfied that the documents are genuine and if in doubt, must ask for further documentation such as a marriage certificate or deed poll reflecting change of name.
The employer must take a photocopy or scan of the employee’s passport including the personal details page, both sides of a BRP and any pages with visa stamps showing their right to work in the UK. These must be kept for the duration of the worker’s employment and for a further two years after and the date on which these copies are taken should also be noted.
4) What happens if an employer does not comply?
Under section 15 (2) of the Act:
‘The Secretary of State may give an employer who acts contrary to this section a notice requiring him to pay a penalty of a specified amount not exceeding the prescribed maximum.’
The Home Office uses the ‘Consideration Framework’ which is set out in the code to assess the employer’s liability for a civil penalty. The table is broken down into three stages; determination of liability, the level of breach and the penalty amount.
In determining the civil penalty amount, the Home Office uses the ‘Civil Penalty Calculator’ which comprises of two levels. Level 1 is applicable where an employer has not been found to be employing illegal workers within the three previous years. The starting penalty is £15,000 before any mitigating factors are considered, which can reduce the penalty or alternatively a warning notice can be issued. Under section 21 of the Act, employers can be imposed with criminal sanctions, up to two years imprisonment and/or a fine if they knowingly employ an illegal worker.
Level 2 is applicable where an employer has been found to be employing illegal workers within the previous three years. The starting penalty is £20,000 before any mitigating factors are considered. In this instance the minimum penalty amount is £10,000 and a warning notice cannot be issued.
5) Does the employer have a statutory excuse?
An employer will only have a statutory excuse if they have followed steps 1-3 before an employee commences employment and have evidence of this. If the Home Office is satisfied that the employer has a statutory excuse then they will not be liable for a civil penalty as stated in section 15(3) of the Act.
If the employer has accepted a document where it is reasonably apparent that the person presenting the document is not the rightful owner, the document is false, or if an employer has accepted documents where the person is not allowed to work or live in the UK, the employer will not have a statutory excuse.
For group 1 under List B, a time limit statutory excuse lasts until the expiry date of the leave and for group 2, the statutory excuse lasts for 6 months.
Employers are urged to obtain legal advice before employing overseas migrants to prevent them from becoming liable for a civil penalty.
By Jasmine Shergill,
Solicitor – Immigration, HR & Employment Department for TURBERVILLES (http://www.turbervilles.co.uk/)TURBERVILLES
This blog does not constitute legal or other professional advice. Appropriate legal advice should be sought for specific circumstances and before action is taken