How far do employers need to go in checking visas?
The Home Office is introducing increasingly tough measures to stop people working illegally in the UK. This is part of their pledge to create a ‘hostile environment’ for offenders. We know that it may be difficult for an employer to determine whether someone is an illegal worker. But, there will be little sympathy from the Home Office. Employers often don’t know which way to turn.
Based on our experience of working with employers we have set out below some steps employers should be thinking about. Please do call us if you have any questions.
What should employers be doing?
- Tougher stance on employers;
- What will happen if you employ an illegal worker;
- What steps must employers take
- What if the applicant cannot provide the document
Tougher stance on employers
Illegal entry, remaining in the UK unlawfully and breaching the conditions of a visa have long been criminal offences imposed on the individual offender. But in recent years the Home Office has introduced measures that criminalise and penalise employers as well. The Home Office has taken the view that it is employers who should prevent the employment of illegal workers. They are therefore making employers liable for civil penalties and/or criminal offences.
Working includes all types of working arrangements. These include working under a contract of employment, contract of apprenticeship, contract personally to do work, contract for services, and contract to sell goods, amongst others.
Immigration officers have been given the following powers:
- They are able to to enter business premises;
- Search for and obtain evidence of illegal working; and
- Close a business temporarily.
What will happen if you employ an illegal worker?
It can be a criminal and civil offence to employ an illegal worker.
Employers who are caught employing illegal workers may face a civil penalty (i.e. a fine) of up to £20,000 for each illegal worker. An employer can be liable to pay this fine even if he did not know that he was employing an illegal worker.
The employer will be sent a civil penalty notice informing him of the fine. The employer will have a chance to defend himself and will not have to pay the fine if he can show that he made the correct ‘right to work’ checks.
Proving that you made the correct ‘right to work’ checks is the only way to escape the penalty. It is not an accepted defence to say that you did not know that the employee was an illegal worker.
If an employer is found to be employing illegal workers, he may be liable for a criminal offence on top of the civil penalty. The criminal offence requires the employer to know, or have reasonable cause to believe that they are employing an illegal worker.
Jail for employers who do not check out the visas very carefully
An employer may be sent to jail for 5 years and be ordered to pay an unlimited fine if he is found guilty of employing someone who he knew or ‘had reasonable cause to believe’ did not have the right to work in the UK. An illegal worker may be someone who:
- Did not have leave (i.e. permission) to enter or remain in the UK;
- Previously had leave to remain which has since expired;
- Is not allowed to do certain types of work;
- Has incorrect or false documents.
The ‘right to work’ checks
It has been decided in the UK courts that there is no obligation on an employer to obtain the ‘right to work’ documents. However if the employer is found to be employing an illegal worker, then he will be penalised if he did not perform the ‘right to work’ check correctly. At the same time, an employer must not discriminate against anyone because of their race. This seems contradictory and creates much uncertainty for employers.
To put it another way, the law does not require an employer to obtain the relevant documents via ‘right to work’ checks; however, it does give the possibility of avoiding a penalty if certain documents are obtained from the employee.
Current legal position for employers
In practice the current legal position is that an employer cannot be penalised if he did not carry out the ‘right to work’ checks on someone who is allowed to work in the UK because he/she is not subject to immigration control. Therefore, a well advised employer will be checking carefully.
What steps must employers take?
If immigration officers catch an employer employing an illegal worker, then it is important that he proves that he carried out the ‘right to work’ checks before he employed the illegal worker. The code of practice for employers (which can be found via gov.uk) states that an employer must:
- See the applicant’s original documents from the list of acceptable documents;
- Check that the documents are valid with the applicant present; Specifically, the employer must check that:
- The documents are genuine, original, unchanged and untampered and belong to the holder;
- Photographs and dates of birth are consistent across documents and with the person’s appearances in order to detect impersonation;
- The dates for the applicant’s right to work in the UK have not expired;
- The applicant has permission to do the type of work the employer is offering, i.e. whether there are any work restrictions on the visa. For example, students will have limited permission to work during term times so an employer must also see evidence of their study and vacation times;
- If 2 documents give different names, the applicant must also provide supporting documents showing why they are different, for example a marriage certificate or divorce decree. Supporting documents must also be photocopied and a copy retained.
- Make and keep clear copies of each document, electronically or in hardcopy, in a format that cannot be changed and record the date he made the check. Specifically, an employer must:
- For passports, copy any page with the passport’s expiry date and the applicant’s personal details, as well as pages with entry stamps or visas that indicate that the applicant has an entitlement to enter or remain in the UK and to work;
- For biometric residence permits and residence cards, copy both sides;
- For all other documents the employer must make a complete copy;
- Keep copies during the applicant’s employment and for 2 years after the employment has come to an end.
The gov.uk website provides a tool for checking if someone can work in the UK; however this uses immigration terminology many lay people do not understand and may therefore be of limited use. We will provide you with advice in plain English and guide you on the next steps, where applicable.
What if the applicant cannot provide the documents
If an applicant or a suspected illegal worker is unable to provide documents to prove that they have permission to work in the UK then the employer must ask the Home Office to check their immigration employment status if any of the following applies:
- They cannot show their documents because they have an outstanding appeal, administrative review or application with the Home Office;
- They have an Application Registration Card;
- They have a Certificate of Application that is less than 6 months old.
The employer must obtain the applicant/employee’s permission to make the check and must provide their personal information and information about the job role. Many of the above documents do not allow a person to work. If the person in question has a right to work, the Home Office will send a ‘Positive Verification Notice’ to confirm that the applicant has the right to work.