The government has, in recent months, made it clear to employers that the use of illegal workers will not be tolerated. The Immigration Bill, currently going through Parliament will bring in serious penalties for both the illegal workers (up to six months in prison) and the companies who make use of their labour (loss of licences, fines and possible prison sentences).
It is crucial, therefore, that companies take steps to ensure that they do not find themselves on the receiving end of enforcement action. Failure to do so could end up costing them dearly.
The problem is that the rules regarding the use of foreign nationals are rather complex and consequently, it can be difficult for HR practitioners to be certain of what is needed to ensure compliance. Since HR will be administering much, if not all, of the recruitment process, they will be required to carry out the requisite checks and ensure that regulatory and legislative compliance is maintained for the duration of the employment.
Ten steps for employers to take:
When checking original documents, this should be done in the presence of the holder. Copies of documents should not be accepted and if a prospective employee offers only excuses or delay, this should be grounds for suspicion. The key point to bear in mind is that if there are no documents, there can be no employment.
In order to safeguard their position, employers should maintain a record of all documentation requested and provided for as long as the employee remains with them. The employer will then be able to provide a defence if they are the subject of enforcement action.
An employer who has suspicions that one of their employees is working illegally or has supplied a document that is false, doctored or stolen should get in touch with the Sponsorship, Employer and Education helpline as soon as possible to report their misgivings. If the employer has not employed the person and reports the incident, they will have no liability for a civil penalty.
All pages in passports that relate to visas, as well as the photographic page and both sides of the Biometric Residence Card should be copied by the employer. The Biometric Residence Card should specify what permission to work has been given to the bearer. The employer should keep in mind that students will have restrictions imposed on them.
When the employer has finished their Right to Work check, they should sign and date the document. If there is no date specified on the document copy, it should be recorded in a form that can be presented to the Home Office if they make a request for it.
Within their policies and procedures, the employer should have a section on the right to work. It is important that this is updated to reflect current legal and regulatory requirements. HR systems should be similarly updated. When a prospective employee is contacted, they should be made aware that any offer of employment is conditional on the required documentation, in good form, being presented
For new employees, any right to work check must be carried out before employment begins. If there are no documents presented before the job is scheduled to start, then the start date must be delayed until the correct documentation is available.
Many visas have a specific expiry date and employers should establish a system for tracking them so that updated documents can be requested well in advance of the date they expire – generally at least three months. If no updated document can be provided, then the employee cannot continue in their employment.
The Home Office Employer Checking Service can be very useful if there is an immigration application decision pending for an employee, or if they have appealed against one. However, this process can only be completed if there is a case identification number, which will be provided by the employee.
Any documentation required for Right to Work checks must be on the acceptable documents checklist (Lists A and B). These can be found on this website No other documentation will satisfy legal requirements.