Immigration is all over the news again, as critics round on the Government for failing in its promise to cut net migration to the UK. Overall net migration (being the total of those migrants arriving in the UK minus those who leave) is now at 298,000 per year, which is higher than when the Coalition came into power in 2010. With an increasing number of employees now from outside the UK, is it time that your business makes sure that everything is in order? Do all of your employees still have the right to work in the UK? What are your responsibilities? And what could happen if you get it wrong? Is it time for a 'spring clean' of your immigration procedures?
Who has the right to work in the UK?
British citizens and their dependants.
Citizens of EEA countries, or Switzerland, and their dependants.
Non-EEA nationals who have applied successfully to work in the UK (most commonly under the points-based system), and their dependants.
What checks do I need to do?
It is unlawful for employers to employ individuals who do not have the right to work in the UK, or who are working in breach of their conditions of work. All employers must carry out the following checks before an individual starts work:
View the original documents which show that the individual is eligible to work. The list of relevant documents is on the Home Office website here. Individuals under categories 1 and 2 above will need to show documents from List A, but where the individual only has a limited right to remain in the UK (i.e. those in category 3), additional documents under List B should also be checked.
Check that the documents are valid with the individual present. Are the documents genuine and do they match the individual's details? If the individual has a limited right to work, has that right expired? Do the photos match the individual? Do the dates of birth on the documents match?
You should make and retain copies of all of the relevant documents, and note the date of the checks, to demonstrate that you have complied with your right to work obligations.
Remember to carry out checks on all prospective employees, so as to avoid the risk of discrimination (i.e. not just to those candidates who appear to be of non-British descent).
In addition, if you employed individuals prior to May 2014 under category 3, you were obliged to conduct checks within 12 months of their start date, and then on an annual basis, to confirm that the individual retained the right to work in the UK (until such point as they no longer have a limit on the duration of their stay). Employers can use the Home Office's Employer Checking Service.
Where an employee has been employed since May 2014 by producing documents in List B, Group 1, the employer must now only demonstrate that they have conducted the checks: (a) before employment; and (b) prior to the expiry of the individual's immigration permission. Where the individual produces documents under List B, Group 2, checks must be made: (a) before employment (by receiving a positive verification from the Home Office's Employer Checking Service); and (b) within 6 months of the start date.
However, notwithstanding the reduced obligations on employers, we still recommend conducting, as a minimum, annual checks on employees' immigration status. By maintaining a secure database of the employees' leave rights and documents, this should minimise any risk of falling foul of the checks. The system should have the capability to flag the important dates at least 6 months before.
What happens if I get it wrong?
The Home Office can issue a notice of liability, or impose a civil penalty if an employer negligently employs an individual who is subject to immigration control, but is not entitled to undertake the work for which they are employed (i.e. they do not have the necessary immigration permission, or that permission is invalid, has been revoked, or cancelled or has expired). Civil penalties are published by the Home Office on a public register, which is available online. As of May 2014, the maximum civil penalty for non-compliance is £20,000 per individual.
However, if an employer knowingly employs an individual who does not have the appropriate permission to work in the UK. The maximum criminal penalty can be an unlimited fine and up to 2 years imprisonment.
Furthermore, if the employer already holds a sponsorship licence, under Tiers 2, 4 or 5 of the Points-based system, the Home Office can take the imposition of a civil penalty into account when deciding whether to downgrade or revoke a existing licence. It is also a consideration if a sponsor applies for a licence, or applies to renew its licence. If a sponsor does not pay a civil penalty, breaches the terms of a penalty payment plan, or receives a second penalty, their licence will be revoked immediately.
To avoid a civil penalty, an employer must show that it complied with all of its prescribed requirements. This is known as the statutory excuse. The employer will establish the full statutory excuse if they carry out all the checks and procedures above. Undertaking some of the checks will establish a partial statutory excuse and may incur a reduction in the civil penalty. There is no excuse for a criminally liable offence.
Request and examine all of the relevant right to work documents before each individual starts employment. Satisfy yourself that you have met the statutory excuse. If in doubt, use the Home Office Employer's Checking Service.
Retain copies of the relevant documents on a secure system throughout the employee's employment.
Conduct regular (and, under best practice, at least annual) checks on each migrant's immigration status to confirm that you retain the statutory excuse.
If you are concerned that you have not conducted the correct checks or operate sufficiently robust systems, seek to remedy this as soon as possible. This may provide a partial statutory excuse if picked up by a Home Office audit.