New measures to tackle illegal migrant working came into force on 29February 2008. The basic position under the Immigration, Asylum &Nationality Act 2006 is unchanged in that it is illegal to employ aworker who does not have the appropriate permission to work in the UK,and that employers must prove they have examined and taken copies ofcertain documents as evidence of the worker's right to work in the UKremains. However, one change is that employers have a responsibility tocheck the documents of those employees who have a time-limitedimmigration status. This follow-up check should be undertaken at leastonce every 12 months.
However, the biggest changes relate to the penalties for companies thatemploy migrant workers illegally. This includes a sliding scale systemwith minimum and maximum penalties. There is a proposed maximum penaltyper illegal worker of 10,000. The Act also introduces a newcriminal offence for employers who knowingly employ illegal migrantworkers. This offence carries a maximum two-year prison sentence and/oran unlimited fine. The draft Code of Practice issued by the Border andImmigration Agency indicates these penalties may be reduced in certaincircumstances. Among the factors that will be taken into account are anychecks (full or partial) that have been conducted by the employer; ifthe employer has reported suspected illegal workers to the Agency; theemployer's co-operation with the Agency, and whether any previouspenalties or warnings have been issued to the employer; and thethoroughness and/or consistency of the employers' existing employmentprocesses.
The Government intends to introduce identity cards for foreign nationalson a compulsory basis in due course. Until then, if any employer whogives only a casual cursory glance at documents which, when looked atmore carefully, are clearly not genuine, then they could be held liable.Similarly where a potential employee produces a genuine document but itis apparent that the person presenting it is not the correct holder,then the employer may be liable.
Employers should therefore ensure that their current procedures forchecking the status of workers comply with the new legislation,including the ongoing obligation where time-limited immigration statushas only been granted.
Elizabeth Adams is partner, Employment Group, Beachcroft LLP.
