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...

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