Dear Mr Bassie, I run a business in the United Kingdom and I have been employing immigrants for a number of years. I have now been made to understand that I could be held liable for employing any immigrant who is not eligible to work here, depending on when the person is hired. Any help would be appreciated.- F.W.
An employer does have certain legal responsibilities and duties to check that their employees and potential employees have the right to work in the United Kingdom.
In order to avoid the risk of a fine, prior to employment, an employer must ask for and take copies of original and acceptable documents, which show that the holder is permitted to work in the United Kingdom, before he or she is employed. The employer must also be satisfied that the documents presented are genuine and that the prospective employee who is presenting them is both the rightful holder and allowed to do the type of work that is being offered. In addition, if the employer employs a person who has a time limit on his or her stay, then the employer is obligated to carry out repeat checks at least once every 12 months,
It should be noted that the checks that employers should make, or have made, to ensure that their employees are entitled to work in the United Kingdom will depend on the initial employment date of each individual.
An employer's legal responsibilities in respect of preventing an illegal migrant from working in the United Kingdom will relate only to staff who are employed on or after 27 January 1997. Hence, employers who did not check the entitlement to work in the United Kingdom of their staff who were employed before this date are not liable to sanctions if such individuals are found to be illegal migrant workers.
An employer will need to check those members of staff who were employed from January 27, 1997 to April 30, 2004 when the law changed. Under the law, it was a criminal offence to employ a person aged 16 or over who was subject to immigration control and who did not have permission to work in the United Kingdom, or who worked for the employer in breach of their conditions of his or her stay in the United Kingdom.
While the law enabled employers to be prosecuted for employing illegal migrant workers, it also allowed employers to establish a statutory defence against conviction for doing so. Employers could establish the statutory defence by carrying out specific checks on the original documents of prospective employees. The documents that should have been checked for staff employed from January 27, 1997 to April 30, 2004 were described in the comprehensive guidance booklet that was published by the Home Office in December 1996.
However, if an employer had hired an illegal migrant worker from January 27, 1997 to April 30, 2004 and did not establish a statutory defence, then he or she could still be prosecuted and fined up to £5,000 per illegal worker in a Magistrates' Court or Sheriff Court in Scotland.
The checks for staff who were employed from May 1, 2004 to February 28, 2008 differs slightly. The same rules still apply, except that the law was strengthened and the legislation was tightened by the lists of documents that employers were advised to check, eliminating documents, which had proved vulnerable to forgery and requiring specific combinations of documents to be seen.
The documents that should have been checked for staff employed from May 1, 2004 to February 28, 2008 were described in the guidance booklet published by the Home Office in April 2004.
However, if an illegal migrant worker from May 1, 2004 to February 28, 2008 was employed and the employer did not establish a statutory defence, then he or she could still be prosecuted and fined up to £5,000 per illegal worker in a Magistrates' Court or Sheriff Court in Scotland. It should be noted that if an employer hired an illegal migrant worker from October 1, 2004 to February 28, 2008 and did not establish a statutory defence, then he or she could still be prosecuted and receive an unlimited fine in a Crown Court.
Also, under the law, employers can be fined a maximum of £5,000 per illegal worker if they continue to employ an unregistered non-exempt worker after one month and if the employer has not retained a copy of the worker's Home Office application form and has not received a certificate of registration. An employer can also be fined for continuing to employ a worker if the employer has been notified by the Home Office that the worker's application has been refused.
With respect to members of staff who were employed from February 29, 2008, the conditions will remain as mentioned above and, in addition, when checking employees' original documents for employees with time-limited leave to be in the United Kingdom, employers will only have the defence if they carry out repeat checks at least once every 12 months.
If an employer knowingly employs or has knowingly employed an illegal migrant worker from February 29, 2008, that employer could be prosecuted and receive an unlimited fine and/or a maximum two-year prison sentence, and could be liable for a civil penalty of up to £10,000 per illegal worker.
Any objection lodged against a civil penalty notice of liability should be carried out using form IWCP-4 which can be obtained from the authorities. It should also be noted that employers should not be discriminatory when carrying out their checks.
John S. Bassie is a barrister/attorney-at-Law who practises law in Jamaica. He is a Supreme Court appointed mediator, a fellow of the chartered Institute of Arbitrators, a Chartered arbitrator and a member of the Immigration Law Practitioners Association (UK). Email: firstname.lastname@example.org.