You may have completed the required right to work checks when you first took on a new employee, and thought that’s where your duty ended for avoiding prosecution for hiring illegal workers. Did you realise that in some cases further checks must to be performed on an ongoing basis? Does your HR policy ensure your company covers the necessaries to avoid heavy fines and, or prosecution?
Immigration, Asylum and Nationality Act 2006:
You are breaking the law if you employ a person who does not have the right to work in the UK.
Under Section 15: An employer not completing the necessary checks can be charged a civil penalty of up to £10,000 for each illegal worker they have hired.
Under section 21: An employer knowingly employing an illegal worker can face criminal prosecution leading to the possibility of up to 2 years imprisonment and, or an unlimited fine!
Certain documents, such as a passport showing the person is a British citizen, provide a statutory excuse for the entire length of a worker’s employment. With a statutory excuse, if the employee is subsequently found to be an illegal worker, the employer may avoid the charges and, or prosecution.
Right to work documentation that does not give a clear indication that the person has a permanent right to work in the UK only provides the employer an excuse for 12 months. For this type of document the employer must repeat the checks at least every 12 months to renew their excuse.
An example for this would be where the document is a Home Office issued letter indicating that the person can stay in the UK and is allowed to do the work in question (in combination with an official NI document).
Remember, duties from the 2006 Act apply to anyone who starts working for you on or after 29 February 2008. Also, the previous 1996 Act means that you should have already acquired appropriate Right to Work documents for all employees that started working for you between 27 January 1997 and 28 February 2008. Do you have the correct documentation required for all relevant staff?
So, as an employer, to have an excuse (and avoid possible fines and prosecution):
- Correctly carry out the required checks on acceptable documents before a person starts work
- Repeat the required checks for any person whose documentation does not show a permanent right to work, at least every 12 months, or sooner, if a person’s limited right to work is due to expire before the 12 months deadline.
- Ensure to keep within any restrictions on the type of work and, or, the amount of hours they can work.
- Do not under any circumstances employ an illegal migrant worker knowingly.
Note: A person’s Right to Work documentation only needs to be kept for 2 years after the employment of that person has ceased.