Changes to the law on preventing illegal working

PROTECTING YOURSELF AS AN EMPLOYER

The Home Office has announced changes to the law for UK Employers effective from May 1st 2004. Employers need to make basic document checks on each person they intend to employ in order to establish that they have a right to work in the U.K. and are here legally. Failing to do so potentially places the employer at risk of committing a criminal offence.

We have summarised the key points below from the Home Office literature, but please refer to the Home Office directly for a full description.

Under section 8 of the Asylum and Immigration Act 1996 it is essential that you check with all potential new employees that they have a right to work in the U.K. and are here legally. If you do not do this you are placing yourself at risk of committing a criminal offence. All employers in the United Kingdom need to make basic document checks on every person they intend to employ.   By making these checks, employers can be sure they will not break the law by employing illegal workers and establish a defence.

By following the steps laid out below you will comply with the requirements for establishing a defence, and you will not be convicted of employing a person illegally if you are later found to be doing so. You must do this before you take on the employee or you will be at risk of committing an offence.

Step 1

You must ask all potential employees to provide you with original documents as follows:

• One document from List 1 OR
• Two documents in the combinations of List 2

Please see below for lists.

Step 2

You must satisfy yourself that the potential employee is the rightful holder of the documents they present.   The documents should also confirm the person is entitled to do the type of work you are offering.   Please use the following guidance when making these checks:

• Check any photographs to ensure they are consistent with the appearance of your potential employee.
• Check dates of birth are consistent with the appearance of your potential employee.
• Check expiry dates have not been passed.
• Check any United Kingdom Government stamps or endorsements to see if the potential employee is able to do the type of work you are offering.
• If the potential employee gives you two documents with different names, you should ask for a further document to explain this, i.e. marriage certificate, divorce document, deed poll, adoption certificate or statutory declaration.

Step 3

Keep a photocopy or scan (using only the Write Once Read Many/Worm software package) of the following parts of the documents shown to you:

• The front cover and all of the pages which give your potential employee's personal details.   In particular, you should copy the page with the photograph and the page which shows his or her signature and
• Any page containing a United Kingdom Government stamp or endorsement, which allows your potential employee to do the type of work, you are offering.

You need to keep a record of all the documents you have copied. By doing this the Immigration Service will be able to examine your right to the defence if they detect anyone working illegally for you.

It is essential that you carry the checks out on all potential employees whether or not you think they have a right to work in the U.K by making assumptions based on their appearance or accent.   If you do not ask all potential employees you could face prosecution under the Race Relations Act 1976 and an unlimited fine.

Currently the maximum penalty a court can impose is £5000 for each person you are found to have employed illegally. The Government has set up an employers help line if you are worried about employing somebody, the number is 0845 010 6677, alternatively you can log onto their website at www.ind.homeoffice.gov.uk .

List 1 - Documents which provide the defence if produced alone.

Any one of the documents included in List 1 will provide you with the defence if you check and copy them, and follow all of the steps over.

• A passport showing that the holder is a British citizen, or has a right of abode in the United Kingdom.
• A document showing that the holder is a national of a European Economic Area country or Switzerland.   This must be a national passport or identity card.
• A residence permit issued by the Home Office to a national from a European Economic Area country or Switzerland.
• A passport or other document issued by the Home Office which has an endorsement stating that the holder has a current right of residence in the United Kingdom as a family member of a national from a European Economic Area country or Switzerland who is resident in the United Kingdom.
• A passport or other travel document endorsed to show that the holder can stay indefinitely in the United Kingdom, or has no time limit on their stay.
• A passport or other travel document endorsed to show that the holder can stay in the United Kingdom; and that this endorsement allows the holder to do the type of work you are offering if they do not have a work permit.
• An Application Registration Card issued by the Home Office to an asylum seeker stating that the holder is permitted to take employment.

List 2 – Documents which provide the defence if produced in combination.

List 2 covers the combinations of documents which will provide you with the defence if you follow all of the steps over.   You will not have the defence if you see one document from the first combination and one from the second combination.

First Combination

1. A document giving the person's permanent National Insurance Number and name.   This could be a P45, P60, National Insurance card, or a letter from a Government agency.

Along with checking and copying a document giving the person's National Insurance Number, you must also check and copy one of the following documents listed in sections 2-8:

1. a full birth certificate issued in the United Kingdom, which includes the names of the holder's parents; OR
2. a birth certificate issued in the Channel Islands, the Isle of Man or Ireland; OR
3. a certificate of registration or naturalisation stating that the holder is a British citizen; OR
4. a letter issued by the Home Office to the holder which indicates that the person named in it can stay indefinitely in the United Kingdom, or has no time limit on their stay; OR
5. an Immigration Status Document issued by the Home Office to the holder with an endorsement indicating that the person named in it can stay indefinitely in the United Kingdom, or has no time limit on their stay; OR
6. a letter issued by the Home Office to the holder which indicates that the person named in it can stay in the United Kingdom, and this allows them to do the type of work you are offering; OR
7. an Immigration Status Document issued by the Home Office to the holder with an endorsement indicating that the person named in it can stay in the United Kingdom, and this allows them to do the type of work you are offering.

Second Combination

1. A work permit or other approval to take employment that has been issued by Work Permits UK.

Along with a document issued by the Work Permits UK, you must also check and copy one of the following documents listed at 2-3:

1. a passport or other travel document endorsed to show that the holder is able to stay in the United Kingdom and can take the work permit employment in question; OR
2. a letter issued by the Home Office to the holder confirming that the person named in it is able to stay in the United Kingdom and can take the work permit employment in question.

The Government has set up a Workers Registration Scheme to monitor the participation in the UK labour market of workers from the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Slovakia and Slovenia.   Once you have established the person has a right to work you will need to make sure that a person from one of these countries registers with the Home Office.   For them to be able to do this you must provide them with evidence of the employment (a contract or letter).   You must then take a copy of the completed application for registration before it is sent to the Home Office.   You must keep this copy until you receive notification from the Home Office that the worker has been registered successfully.   The Home office will send to you a copy of the registration certificate confirming this; you must retain the form sent to you.

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