While the political debate wages on over the government’s immigration policy, the fate of Mark Harper, the minister responsible for implementing tough new measures to curb immigration and behind the disastrous “Go Home “ advertising campaign is uncertain. This is a wakeup call to all employers, especially in sectors like food which employs a large number of foreign nationals.
Harper was recently forced to resign after it came to light that his South American cleaner, who had worked for him for seven years, had apparently duped him into believing she was entitled to work in the UK. Harper claimed that when he hired her in 2007 he checked and took copies of her passport and a Home Office letter giving her indefinite leave to remain and work in the UK. However, Harper says he then lost the copies and, when he carried out new checks recently, her documentation was invalid. It seems that Mark Harper may not have committed an offence under the previous immigration regime which ended in 2008, but clearly his position as immigration minister was untenable.
It is unlawful to employ anyone who does not have the right to live and work in the UK, or who is working here illegally. All employers are required to carry out checks before someone starts working for them and to keep a record of the checks which were carried out. It is a criminal offence to knowingly employ an individual who does not have the requisite permission to work in the UK. Employers face a civil penalty of up to £10,000 (which is likely to increase on 6 April 2014 to £20,000 with £15,000 payable for a first offence).
It is not always easy to tell if an overseas national is allowed to live and work in the UK. Employers face a confusing array of immigration categories ranging from those who are permitted to work here without restrictions such as European nationals from the 27 EU member states (including Romania) and from Iceland, Liechtenstein, Norway and Switzerland and those who are legally settled here, to individuals who are subject to immigration control and have restrictions on their period of stay and on their ability to work. Employers are required to check original documents evidencing the prospective employee’s right to work in the UK (there is a comprehensive guide issued by the UK Border Agency to identifying false documents) and to make and retain copies. In certain cases employers have to conduct annual checks.
There have been more than 200 prosecutions of employers for immigration offences since 2008 and no sign that the campaign against those who employ illegal immigrants will abate. Given the hefty penalties and potential for damaging publicity for employers who do not take care to make the necessary checks, every employer should make sure they understand what is required of them, and that they have evidence of the right to work in the UK for all their employees.
If you have any questions or would like more information, please contact Helga Breen, Head of Employment in London.