The UK Border Agency has recently issued new guidance for
employers on the Prevention of Illegal Working. We have also seen an
increase in audits carried out by the UKBA, both pre-arranged and
unannounced. Therefore, it is essential for all employers to ensure
that your illegal working checks are being carried out in
accordance with your obligations. Employers must conduct the checks
before an individual begins working, and keep records of the
required documentation, see previous
Law-Now for details.
The evidence required to order to rely on the statutory excuse is
not always straightforward. For example, the new Guidance clarifies
the policy in relation to Indefinite Leave to Remain (ILR)
endorsements. It confirms that an ILR stamp in an expired passport
can be accepted as satisfactory evidence of right to work. However,
this is not the case with the Right of Abode. A certificate of
entitlement to the Right of Abode is only acceptable as evidence of
the right to work in the UK if produced in a valid passport www.opsi.gov.uk/si/si2006/20063145.htm.
Situations such as this can cause confusion, and result in
noncompliance by employers who are not aware of the detail of these
provisions.
Further, for employees who began working on or after 29 February
2008, employers must not only carry out checks prior to their first
day, but also at least every 12 months thereafter, while the
individual continues to have a limitation on their leave to remain
in the UK. This would include those with the Right of Abode, whose
leave lapses when their passport expires. Therefore, it is critical
to carry out these annual checks so that employers can continue to
rely on the statutory excuse. If employers fail to carry out the
necessary checks, the UKBA can impose a civil penalty of
£10,000 per illegal worker and the company's name would
also appear on the UKBA's website, stating the level of the
civil penalty issued.
Having thorough illegal working check procedures in place should protect employers from a potential fine and reputational damage.
This article was written for Law-Now, CMS Cameron McKenna's free online information service. To register for Law-Now, please go to www.law-now.com/law-now/mondaq
Law-Now information is for general purposes and guidance only. The information and opinions expressed in all Law-Now articles are not necessarily comprehensive and do not purport to give professional or legal advice. All Law-Now information relates to circumstances prevailing at the date of its original publication and may not have been updated to reflect subsequent developments.
The original publication date for this article was 31/01/2011.
