Employers could face criminal charges if they or any person on their behalf employs an illegal worker. Penalties include up to 5 years in jail and/or an unlimited fine. The Civil Penalty Scheme states that any employer found employing an illegal worker, even if they were never aware, could face an on the spot fine of up to £20,000 per illegal worker.
A visiting immigration officer can issue a fine if they suspect the employee is working illegally and is not required to check the documentation. It is then up to the employer to prove otherwise and they have 28 days in which to do so. If the Home Office finds that the employer has illegal workers in their workforce it can affect their ability to obtain a licence to sponsor foreign workers. If the employer has already got a sponsors licence the Home Office can revoke it.
How to check an employee’s document
The Home Office has published a three step system for checking employees’ documents; these steps are (1) Obtain, (2) Check and (3) Copy.
The first step is to obtain the original document. The Home Office has published two lists of documents that are acceptable as evidence of the right to work in the UK; List A and List B.
List A - Documents that show an ongoing right to work.
- No need to check immigration status
- No need to make further checks
- If an employee is later found to be working illegally then an employer will not be liable for a fine.
List A - Documents
- A passport showing that the holder is a British citizen. [Please note that British Overseas Citizens do not automatically have the right to work in the UK]
- A passport or national identity card showing that the holder is a citizen of the European Economic Area (EEA), or of Switzerland. [Please note the situation is slightly different for Croatian nationals. See below]
- A Registration Certificate or Document Certifying Permanent Residence issued by the Home Office which states that the holder, a national of the EEA or Switzerland, has permanent residence.
- A Permanent Residence Card issued by the Home Office to the family member of a national of the EEA or Switzerland.
- A current Biometric Residence Permit issued by the Home Office which states that the holder is allowed to stay indefinitely in the UK, has the right of abode in the UK, or has no time limit on their stay.
- A current passport endorsed to show that the holder is ‘exempt from immigration control’, is allowed to stay indefinitely in the UK, or has no time limit on their stay.
- A current Immigration Status Document issued by the Home Office which has been endorsed to show that holder is allowed to stay indefinitely in the UK or has no time limit on their stay in the UK. This must be produced in combination with an official document giving the holder’s permanent National Insurance number and their name, which has been issued by a government agency or previous employer.
List B: A document that shows a limited time that a person is allowed to be in the UK
An employer is protected as long as:
- The right to work does not expire
- The employee has made an application to extend his leave before his right to work expires
- An employer obtains a Positive Verification Notice from the Home Office which provide 6 months protection. Employers will need to carry out a new check before the end of the 6 months to obtain a further 6 month of protection
List B - Documents
- A Certificate of Application, issued by the Home Office to a family member of a national of the EEA or Switzerland stating that the holder is permitted to take employment. This must be produced in combination with a Positive Verification Notice from the Home Office Employer Checking Service. Both the Certificate of Application and the Positive Verification Notice must be less than 6 months old to maintain the statutory excuse
- An Application Registration Card issued by the Home Office stating that the holder is permitted to take employment. This must be produced in combination with a Positive Verification Notice from the Home Office Employer Checking Service
- A Positive Verification Notice issued by the Home Office Employer Checking Service to the employer or prospective employer, which indicates that the named person may stay in the UK and is permitted to do the work in question.
When conducting checks, if you are presented with documents indicating that the holder is a student with a limited right to work in the UK during term time, you are required to obtain and retain evidence of their academic term and vacation dates, as follows:
- A printout from the student’s education institution’s website or other material published by the institution setting out its timetable for the student’s course of study. You should check the website to confirm the link is genuine
- A copy of a letter or email addressed to the student from their education institution confirming term time dates for the student’s course
- A letter addressed to you as the employer from the education institution confirming term time dates for the student’s course.
The Home Office’s list of documents showing an ongoing right to work in the UK includes ‘a passport or national identity card showing that the holder is a national of a European Economic Area country or of Switzerland.’
Croatia joined the EU on 1 July 2013. However, Croatian nationals do not have the automatic right to take employment in the UK, They must obtain permission to do so.
Croatian nationals should provide their passport and one of the following:
- A Registration Certificate stating that he or she can undertake the work in question:
A Blue Registration Certificate means that there are no work restrictions
A Yellow Registration Certificate indicating that the holder is a student means that they can work only 20 hours per week during term time and full time during holiday periods of their study course. (A Yellow Registration Certificate indicating that the holder is self -employed or self-sufficient means that they can only work in a self-employed capacity, or that they cannot work, respectively)
A Purple Registration Certificate, or Accession Worker Card, means that he or she can only work in the role for which the certificate was granted. In this case the employer will have sponsored the employee under Tier 2 of the Points-Based System
- A valid endorsement in their passport, dated before 1 July 2013, stating they can undertake the work in question.
- A free-standing Document Certifying Permanent Residence or a Residence Card endorsed into the employee’s passport, stating that the holder has permanent residence in the UK
The second step is to check that the obtained documents are genuine and that the person presenting them is the prospective employee, that they are the rightful holder and allowed to do the type of work you are offering. The standard of verification is that someone who is untrained in the identification of false documents, who examines the document carefully but briefly and without the use of technological aids, could reasonably be expected to realise that it is not genuine.
The checks must be done in the presence of the holder. The main things to check are:
- Any UK Government endorsements to see if the employee is authorised to do the work in question
- Whether any photos match the employee’s appearance
- The employee’s appearance is consistent with the date of birth given on the document
- The expiry dates of any limited leave to remain in the UK have not passed
- If the employee produces two documents which have different names, the employer must ask for evidence of a name change, such as a marriage certificate.
When checking a Biometric Residence Permit, check the permit number on the front of the permit in the top right hand corner. It should start with two Letters followed by seven numbers. Check that the employee’s picture is in grey-scale.
Check the raised design of the UK’s four national flowers is on the back. The design can be seen by shining a light across the permit. You can also feel the raised design by running your finger over it.
It is important to remember that each of the different lists of documents will have different rules when it comes to rechecks.
List A need only be checked before employment starts.
List B Group 1 requires checking before employment and when permission expires.
List B Group 2 must be checked before employment starts and again after 6 months.
The next step is to make a clear copy of each document in a format which cannot be altered and retain the copy securely either electronically or in hardcopy. You must also retain a record of the date on which you made the check.
When copying a passport, the employer must copy any page containing personal details: nationality, a photograph, date of birth, date of expiry or biometric details.
The employer should also copy any page containing UK Government endorsements indicating that the holder has an entitlement to do the work in question.
When copying any document other than a passport, the employer should copy the whole document. For example, both sides of a Biometric Residence Permit.
The copy or copies must be kept for no less than two years after the employment has come to an end, since documents may be needed on file as evidence of an employee’s right to work.
Request our free prevention of illegal workers check list
For our clients who employ non-EU nationals, we have drafted a checklist for them to complete when inducting new employees. This checklist, if properly completed and followed, is likely to help employers falling foul on the rules governing the employment of illegal workers. The feedback we have had from our clients is that it has put their minds at rest, and they complete our checklist whenever taking on new employee.
If you would like to receive our checklist, please contact firstname.lastname@example.org or telephone on 0207 822 4000.