Illegal Working Checks - Are You Following Correct Procedures?
Baroness Scotland, the Attorney General, has provided employers
with a salutary warning this week. She has been fined £5,000
by the UK Border Agency for employing a non-EEA national who was
not permitted to work in the UK, breaching the law which she helped
to draft. Her name will also appear on the register of employers of
illegal migrants, which names and shames non-compliant employers.
As she did not keep copies of the documents she allegedly checked
to verify her housekeepers right to work in the UK, she could not
establish a Statutory Excuse against the penalty.
This high profile case shows how important it is that an
employer conducts illegal working checks before any employee begins
working and keeps the necessary records. Given the increased
activity of the UK Border Agency's compliance teams, employers
will only be able to avoid the risk of fines and reputational
damage by following well defined and rigorous processes.
Primary Obligations: Illegal Working Checks
Before an individual may begin working, each employer must check
that the individual has the right to work in the UK. The employer
must view a document as specified by legislation, known as List A
or B, and verify:
the photograph is a true likeness of the employee;
the date of birth matches the appearance of the employee and is
consistent on all documents;
any name changes are corroborated by evidence, such as a
marriage or divorce certificate.
If the employee is an EEA national or has no restriction on
their leave to remain in the UK, the employer must view a document
stated in List Asuch as an original British passport. The
employer must take a copy or scan of the front cover of the
passport and the data page, which should also show their photograph
and state the full name, nationality, date of birth and contain the
individual's signature.
If the employee has a restriction on the time they may remain in
the UK, the employer must view original documents as stated in List B. This will include, for example, an
original passport endorsed with a UK Ancestry visa, and an
accompanying letter of approval from the Home Office. In the case
where the individual's status is clear from the endorsement,
such as Tier 1 (General), the original passport with the
endorsement is sufficient (a secondary piece of evidence is not
required).
The employer must keep the above copies for the full duration of
employment and for an additional two years after the employee
leaves employment.
Ongoing...
To continue reading
Request your trial