Last week new legislation came into force to increase penalties for employers who take on illegal migrant workers. The Immigration Act 2016 makes it easier to hold bosses accountable for taking on illegal migrant workers, giving courts the power to impose a fine of up to £20,000 and a prison sentence of up to five years for businesses and individuals who fall foul of the new law. It also includes an additional power to shut a business down for 48 hours if an employer is found to have persistently broken the law.
So how do you protect yourself and your business? How to prevent legal migrant workers being affected by false claims that cause stress and affect productivity? And how do you avoid allegations that checks are discriminatory?
Legal migrant workers are without question an important part of our economy across a wide range of sectors, so conducting proper checks is important to protect their right to work for you. There are three initial checks you must carry out. If you don’t complete these checks thoroughly then there is a real risk you will be found liable under the new legislation.
Right to work checks are a vital defence and if carried out thoroughly – before employment starts – enable you to eliminate illegal migrant workers from consideration for roles and swiftly dismiss false claims made against legal migrant workers.
It is wise to apply these checks to any potential employee once the initial selection process has been completed, to avoid the risk of a discrimination claim.
Firstly make sure you obtain the individual’s original identification documents. Home Office guides 'UKVI: An Employers Guide to Acceptable Right To Work Documents' and 'UKVI: Right to Work Checklist', feature lists of acceptable official documents.
Secondly check those documents with the potential employee present, making sure photographs match, double-checking personal details, expiry dates for eligibility to work, UK government endorsements and that no documents have been tampered with.
Finally copy and keep all documents and record the date they were checked by you. These must be stored in a way that cannot be altered for the duration of the individual’s employment and two years after their employment ends.
A prospective employee may claim to have made an application or appeal to the Home Office, show you an application registration card claiming to have been granted asylum, or present a certificate of application issued to or for a family member from a European Economic Area nation or a Swiss national. If they do you should also use the Employer Checking Service. If the individual is permitted to work you will receive a positive verification notice.
It is important for employers not just to establish an individual’s right to work, but to identify renewal dates if their permission is limited and arrange meetings to discuss extending permission several months before expiry. By completing the Right to Work checks, employing an individual whose eligibility has lapsed would qualify as knowingly employing an illegal migrant.
Just as important as compliance is the need to protect workers who are employed legitimately.
The new legislation does risk encouraging discriminatory practices against legal immigrants, particularly from small or medium-size businesses which may see all migrant workers as a risk and may not have the resources to fully check their Right to Work.
It also risks the reporting of legal migrants as illegal. This can be stressful and upsetting for both them and their families as they are detained and have property seized during investigations into their eligibility.
Such an investigation will likely have an effect on your business while you manage employee absence and/or productivity. By conducting a full Right to Work check you can assist with the investigation and help bring it to a quicker resolution.
By taking these measures you can protect legal migrant workers who make a valuable contribution to your business and the wider economy, and protect yourself against severe penalties.
Helen Watson is head of employment law at Aaron & Partners