How to avoid employing illegal workers
If your business is found to be employing illegal immigrants, you face significant civil and potentially criminal sanctions. What steps can you take to avoid falling foul of the law?
Under the Immigration, Asylum and Nationality Act 2006 you may be liable for a civil penalty if you employ someone who does not have permission to be in the UK or undertake the work on offer. If you are found to be employing illegal immigrants, you may incur a Home Office fine of up to £20,000 per illegal worker.
The term illegal immigrant applies to anyone who has not been granted leave to enter or remain in the UK. This is irrespective of how or when they entered, and if they had previously held lawful status and are now deemed as ‘overstayers’.
Within the workplace, the phrase ‘illegal immigrants’ includes anyone subject to immigration control who is not permitted to work by reason of their status. This may be because their leave to enter or remain in the UK is invalid due for example to visa curtailment, revocation, cancellation or expiry. It may also be because of a restriction preventing the person from performing the work in question.
Employers could also face a custodial sentence if they knew, or had reasonable cause to believe, that an employee was disqualified from employment by reason of their immigration status.
In addition to civil or criminal sanctions, your business' sponsorship licence may also be impacted through suspension or revocation, impacting your ability to lawfully hire foreign workers.
How to avoid employing illegal immigrants
As an employer, you can take measures to avoid penalty by carrying out prescribed document checks on all prospective and existing employees. In this way you may be able to establish and retain a statutory excuse. When carrying out prescribed document checks, the following steps must be undertaken:
- Obtain – obtain an original document, or combination of documents, in accordance with the Home Office approved list.
- Check – check the validity of the documentation provided in the presence of the holder.
- Copy – make and securely retain a clear copy of the documentation electronically or in hardcopy. This should be in a format that cannot be manually altered, such as a jpeg/pdf document or photocopy.
- Record – make a contemporaneous record of the date on which you conducted your check. This can be by either making a dated declaration on the copy itself or by holding a separate record. You should also keep a record of when any repeat checks must be made.
- Retain – retain your copies and records for the duration of the individual’s employment, and for a further 2 years after they leave. These may need to be shown to the Home Office upon request to establish your statutory excuse.
If you are provided with a false document you will only face a penalty if it is reasonably apparent that the documentation checked was not genuine, did not rightfully belong to the holder or the work was not permitted.
In some cases you may also need to verify the employee’s right to work with the Home Office Employer Checking Service, eg, where an employee has an appeal or administrative review pending a decision. In these circumstances the Home Office will send you what’s known as a Positive Verification Notice to confirm that the individual in question has permission to work.
Legal advice in respect of employing illegal immigrants
Every employer, irrespective of size or sector, should carry out prescribed document checks on all prospective and existing employees. Failure to meet these duties can result in penalties.
DavidsonMorris specialises in business immigration. We assist companies with PBS Licences, compliance, visa applications and general advice regarding all aspects of UK immigration law.