Preventing Illegal Working - Keep a Copy

The publicity surrounding the imposition of a fine of £5,000 on Baroness Scotland, the Attorney General, for a breach of immigration law is a reminder to employers of the need to have systems in place to demonstrate compliance with the laws preventing illegal working in the UK.

On 29 February 2008, the Immigration, Asylum and Nationality Act 2006 introduced tough new penalties for anyone caught employing illegal immigrants. There is now a distinction between doing so knowingly and unknowingly, but both are against the law.

It is a criminal offence to knowingly employ someone who does not have permission to work in the UK or someone who is in breach of their conditions to remain in the UK. Conviction under this offence carries a potentially unlimited fine and/or a prison sentence of up to two years.

An employer who unknowingly employs illegal immigrants as a result of less than diligent recruitment or employment practices can now face a civil penalty of up to £10,000 for each illegal worker. An employer can establish a defence against liability for payment of a civil penalty by checking and retaining copies of certain original documents before an employee starts work.

Following an investigation, the UK Border Agency (UKBA) declared that it was satisfied that Baroness Scotland did not knowingly employ an illegal worker and did take steps to check documents provided to her as proof of the right to work in the UK. However, she neglected to keep copies as required by law.

It has to be said that some of the UKBA’s guidance on this issue fails to stress the importance of an employer keeping copies in order to show that the necessary checks to ensure that a worker is legally employable have been made. However, the law requires that you retain copies of the relevant pages of each document in a format which cannot subsequently be altered. These must be kept by the employer for not less than two years after the employment has ended.

The documentation that needs to be checked before employment commences will depend on whether a person has an ongoing right to work in the UK (List A documents) or a right to work for up to twelve months (List B documents). Where a prospective employee provides a document or documents from List B, follow-up checks on these must be carried out at least every twelve months and copies made of the documents seen.

Business Link has a useful interactive tool to help employers ensure that they have completed the document check correctly.