Illegal Aliens

When I recruit a new employee what ‘right to work’ documents do I need to check, when do I need to check them and who can do this?

An employer is required to carry out checks on all prospective new employees before they start work and this would include all British nationals that you intend to employ. You must keep records of this to comply with your obligations under the Immigration, Asylum and Nationality Act 2006 and the Immigration Act 2016. Failure to comply with these requirements could lead to severe financial consequences including criminal and civil penalties.

These offences do not relate to engaging self-employed contractors. However, there is a risk that an immigration officer will not distinguish between the different statuses, so it may be prudent to check the immigration status of everyone who works for your business.

An employer will have a statutory excuse against liability, where he can show that he carried out various prescribed document checks to verify the prospective employee’s status. However, the excuse is not available if the employer knew that the person was not entitled to work in the UK when he or she was taken on. The prescribed document checks must be carried out in respect of all prospective employees and take place before the person begins working for your organisation. The checks should be done by someone within your organisation and cannot be outsourced to a third party such as a recruitment agency or outsourced HR or payroll provider as they are not technically ‘employed’ by your company.

A copy of the documents that you need to see are contained within one of two lists contained on the Home Office website. Documents provided from List A establish that the person has an ongoing and permanent entitlement to work in the UK such as a passport of national identity card. Where an individual has restrictions on their entitlement to work in the UK i.e. they have limited leave to enter or remain in the UK, they will need to produce a document or specified combination of documents from List B.

Taking the right steps

To be compliant with the rules, businesses must ensure they take the following steps:

Step one:

Ask all prospective employees to provide one of the original documents, or the relevant combination of documents, given in List A or B of the Home Office website. Please ask one of the team at DOHR for a copy of this if you cannot locate it.

Only original documents are acceptable and photocopies and scans of documents must not be accepted.

Step two:

Check the validity of the documents presented to you by the prospective employee and retain a record of the date on which the right to work check was made:

  • Check any photographs, where available, to ensure that you are satisfied they are of the prospective employee.
  • Check the dates of birth listed so that you are satisfied these are consistent with the appearance of the prospective employee.
  • Check that the expiry dates of any limited leave to enter or remain in the UK have not been passed.
  • Check any UK Government stamps or endorsements to see if the prospective employee is able to do the type of work that you are.
  • Be satisfied that the documents are genuine, have not been tampered with and belong to the holder. You must check the documents in the presence of the holder (either in person or via a live video link). If the prospective employee gives you two documents that have different names, you should ask for a further document to explain the reason for this such as a marriage certificate, divorce decree, deed poll, adoption certificate or statutory declaration. Supporting documents should also be copied and the copy retained.
Step three:

You must take and retain a clear photocopy (or scan in a format which cannot be mannually altered as a jpeg or pdf can) of the relevant document(s). In the case of a passport, you should copy the following:

  • Any pages that give the prospective employee’s personal details, their nationality, photograph, date of birth, signature, the date of expiry, leave expiry date and biometric details.
  • Any pages containing information indicating the holder has an entitlement to enter or remain in the UK and undertake the work in question. All other documents should be copied in their entirety, including both sides of a Biometric Residence Permit.

You must ensure a record of every document is copied and kept securely and in accordance with data protection legislation for the duration of the employee’s employment and for at least two years after employment has ceased. That way, the Home Office will be able to examine the Company’s right to the statutory excuse if they detect an employee is working illegally, even after they have left your employment.

The prospective employee must be able to demonstrate that he or she is permitted to do the work being offered. If the prospective employee is not permitted to work, you are entitled to refuse employment to that person.

Businesses who acquire staff as a result of a TUPE transfer are provided with a grace period of 60 days to undertake the appropriate documents checks following the date of transfer. However, even if the employee was transferred into your business, you cannot rely on their previous employment as your defence and must carry out the RTW checks for yourself.

In some circumstances, you may be presented with documents that require verification by the Home Office ‘Employer Checking Service’ to establish the statutory excuse. The service is delivered online and employers are now able to solely rely on the online Employer Checking Service to demonstrate compliance with illegal working legislation.

Don’t forget following Brexit, that any existing staff who come from the EU will need to apply for ‘Settled Status’ and you will need to check relevant documentation ensuring that this has been obtained. If there is a no deal Brexit, recruiting from EU countries will need to meet the same or similar criteria as when recruiting from other countries. The only known exception to this is Ireland.

While the rules, legislation and offences relating to illegal workers do not relate to engaging self-employed contractors, there is a risk that an immigration officer raiding your business will not distinguish between those with different employment statuses, so it may be prudent to check the immigration status of everyone who works with your business, regardless of how they are engaged.

DOHR are not regulated to provide immigration advice, however, we are happy to support your business with the HR elements of employing overseas workers.

This week’s blog was written by our HR Operations Manager, Fiona Mendel.

Fiona specialises in employment law and heads up our advisory team.

She is more than happy to answer queries on employing overseas workers and can be contacted on [email protected]

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