As all HR professionals are aware, it is an offence to employ anyone who does not have the required permission to carry out the particular job for which they are being employed. Where the employer does not ‘knowingly' employ someone unlawfully, a civil penalty of up to £10,000 may be levied against the unwitting employer. Where, however, the employer knowingly employs someone who does not have permission to do the job in question, it becomes a criminal offence, attracting an unlimited fine and a maximum penalty of six months' imprisonment.
In Baroness Scotland's case, the UK Border Agency considered she had employed an illegal worker but had ‘co-operated fully with the investigation' and, as a result, the agency was satisfied that she had not knowingly broken the law. It further assessed that the civil penalty of £5,000 was in line with the level of fines imposed on other employers and no doubt reflected the fact that Baroness had co-operated with the investigation and had made partial efforts to carry out the right to work checks on her housekeeper. In this case, the baroness had checked certain documents provided to her by her housekeeper as proof of her status, but had failed to retain proof that the documents had been checked.
So how can employers ensure that they do make the same mistakes as the attorney general?
Importantly, there are two relevant regimes depending on the date on which the employee commenced work. For those employed from 29 February 2008 onwards, the position is governed by the Immigration, Asylum and Nationality Act 2006. Under the 2006 Act, an employer can avoid liability for the civil offence if it has employed an illegal worker but carried out a series of specific steps before the individual commences work, as follows:
Step 1 is to request certain original documents. The relevant documents vary depending on the immigration status of the individual; so, for example, the documents required from a UK national will be different from a US national holding a tier 1 visa.
Step 2 is to check the validity of the documents provided and, in doing so, the employer must be satisfied that the individual is the person named in the presented documents.
Step 3 The employer must make copies of the relevant sections of the original documents. For example, where a passport is presented, its front cover, any page containing the holder's details (including photos) and any page containing UK visa stamps must be copied. Such copies must be kept for the duration of employment and for two years after it has ended.
Step 4 applies where an individual does not have the right to stay indefinitely in the UK. In this case, the employer must carry out Steps 1 to 3 above on at least an annual basis.
Importantly, the employer cannot avail itself of any defence to the criminal offence.
The above verification process demonstrates that the law in this area is potentially complicated and administratively burdensome for employers. However, the case of attorney general clearly shows that ignorance is no defence to the law. If employers are in any doubt about the immigration status of its employees, advice should be sought as early as possible.
Chris Hitchins is a partner and Rachel Ashwood is an associate in the employment practice of international law firm Morgan Lewis