Changes To UK Immigration Law - February 2008

The UK government has announced an overhaul of the whole UK immigration system, beginning with changes to measures to prevent illegal working and amendments to the Highly Skilled Migrants' Programme with effect from 29th February 2008.

All employers with a workforce in the UK will be affected to some degree, whether or not they employ any non-EU nationals to work in the UK.

Prevention Of Illegal Working - Establishing The "Statutory Excuse"

For the last 10 years employers have routinely checked prospective employees' right to work in the UK as a safeguard against criminal penalties under the Asylum & Immigration Act 1996 should any of their workforce be found to be working without the correct immigration status.

The regime established by the 1996 Act will be repealed and replaced by sections 15-25 of the Immigration, Asylum and Nationality Act 2006 with effect from 29th February 2008.

The broad framework of the new regime mirrors that under the 1996 Act: in order to have a "statutory excuse" or defence in the event that any of their workforce is found to be working illegally, employers must have sight of and retain copies of specified original documentation. However, significant changes have been made regarding the frequency of checks required and also the penalties for those who have not carried out the checks and are subsequently found to have employed illegal workers.

The lists of documents which an employer must ask to see have been updated (see List A and List B†below). If an individual is only able to provide documents from List B, to retain the "statutory excuse" employers will now be obliged to repeat the checks at least once every 12 months during the life of the employment, or until the employee is able to present documents from List A, indicating a permanent right to work in the UK.

Other key requirements to ensure a valid "statutory excuse" for employees beginning work on or after 29th February are:

The checks must be completed before the employment commences

Only original documents are acceptable

Employers must:

Check that any photographs are consistent with the prospective employee's appearance

Check that dates of birth are consistent across documents presented and correspond with the prospective employee's appearance

If two documents are presented bearing different names ask for further documents that explain the difference, e.g. marriage certificate

Check that expiry dates of leave any leave to enter or remain in the UK have not passed

Check any UK government endorsements (stamps, visas etc) to see if the prospective employee is entitled to do the type of work proposed

Make a careful examination to satisfy themselves that the documents are genuine, have not been tampered with and belong to the prospective employee (provided†careful examination is made, if any forgery is not "reasonably apparent" to a lay person, the statutory excuse will remain valid)

Photocopy or scan each original document (copies/scans must be in a format that cannot subsequently be altered). Copies of passports and travel documents should include the front cover, pages with the holder's personal details and any page containing UK immigration endorsements relevant to the right...