Last summer, the Home Office introduced harsher punishments – from increased prison sentences, to ‘on the spot’ closures – for companies unable to meet the strict provisions of the new Immigration Act 2016.
Whether an organisation is caught intentionally using illegal workers, or has broken the law innocently for failing to have their paperwork in order, the consequences could be dear. But what exactly are the Home Office enforcement checks and penalties?
Employers must carry out the appropriate checks on all new starters before they begin work. They should make sure they see a combination of original documents that prove the person’s identity and their ‘right to work' before working. Such documents include an original, valid passport, plus an original biometric residence permit from the Home Office (if required), providing evidence of that person’s conditions of their stay (including any limitations to their work). The Home Office ‘Prevention of illegal working’ guide provides a list of the documents required.
HR professionals should take copies of these documents, date them and certify them internally as true copies.
A valid EU passport or national identity card is sufficient for an EU worker to work in the UK (apart from Croatians, who need work permission). Non-EU workers require a secondary form of evidence, such as a valid UK visa (endorsed in their passport), or a residence permit stating their conditions of stay.
Non-EU students are limited to the number of hours they can work – for example, 20 hours during term time – and employers must have evidence of them studying and vacation timetables from the institution.
The government's guidance on examining identity documents helps to minimise the chances of employing an illegal worker, such as checking the quality of paper, handwritten alterations and substituted photographs, while all photos and their date of birth should be consistent across documents.
Failing to have the correct documentation readily available during a Home Office ‘spot’ check could lead to closure of premises for up to 48 hours. If the employer can prove it has conducted the appropriate checks, the ‘closure notice’ may be cancelled. Where it cannot, the business may be placed under special compliance requirements, including a period of continued closure, and could face a fine of up to £20,000 per illegal worker.
The government ‘names and shames’ fined employers on its website, and the maximum prison sentence for guilty employers has increased from two to five years. Those caught working illegally could also face a custodial sentence of up to six months, and have their wages seized.
Employers that hold a sponsor licence to employ a non-EU worker have an obligation to keep specific records such as all attendance and absences from work, evidence of a market test (where required) and professional accreditations, and copies of pay slips. They must also report certain information on the UKVI’s online sponsorship management system within 10 days of an event; for example, failure to attend work on the first day, unexplained absences of 10 working days or more, or significant changes in an employee’s circumstances.
While they’re not subject to the same penalties under the right-to-work checks, even the smallest of discrepancies in an employee’s data can lead to a sponsor having their licence suspended or revoked. No new migrants can be employed during investigations and, if the licence is revoked, the employee must leave the organisation, and possibly the UK.
Whether the company is an employer or sponsor, it is important to check that there is a robust data logging system in place, managed by people with clear lines of responsibility, to ensure your organisation is always compliant when the authorities come knocking on the door.
Jonathan Beech is managing director of immigration law firm Migrate UK
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