UK Immigration Changes: Penalty Dilemmas For Employers

Heightened emphasis on enforcement is a cornerstone in the radically different immigration system being implemented in the United Kingdom over the next year. Employers who sponsor foreign persons to work in the UK will have greater obligations to check and report on the status of these workers. As of 29 February 2008, unauthorized employment of foreign workers can subject employers to new civil penalties and an additional criminal offence.

Employers Face New Obligations And Potential Penalties

Employers are still required, under the new immigration system, to ensure all employees are authorized to work for them. Eligible employees include citizens of the UK and most other countries in the European Economic Area. Various provisions of the immigration systemóinvoked through registration, visa application or by operation of lawóalso entitle foreign nationals to work in the UK.

Before every employee starts work, employers must check, copy and retain documents, showing the worker is lawfully in the UK and eligible to work. This document check must be conducted at least once a year for employees whose stay in the UK or whose permission to work is restricted.

As of 29 February 2008, employers who employ a person who is not lawfully in the UK or who does not have the right to work can be subject to a penalty of £10,000 per illegal worker. In more serious cases, criminal sanctions can apply. Employers who can show they conducted proper document checks may be excused from this penalty, but those who knowingly employ unauthorized workers will not be able to invoke this defence. Employers who sponsor a foreign person for a work permit are required to report to the Border & Immigration Agency if the worker leaves employment prematurelyówhether by resignation or by termination by the employer. Under the new system, employers must also report if a sponsored foreign worker does not start work or is absent for 10 working days without permission. Additionally, employers must report any significant change in the person's work conditions and any suspicion the sponsored worker is breaching conditions of his or her permission to work in the UK. Failure to comply with the reporting and record-keeping obligations may affect an employer's ability to sponsor foreign persons to work in the UK.

New Rules Complicate Work-Authorization Requirement

Many employers have found it difficult to verify that all of their workers are authorized to work. This situation is likely...