Since the last updating of the rules on Migrant workers in 2004 much has happened. We have seen the introduction of the Worker Registration Scheme (still in place for eight of the 2004 European Union accession states) supplemented by the Worker Authorisation Scheme in January 2007 and most importantly, the Immigration and Nationality Directorate of the Home Office has been replaced by the Border and Immigration Agency (BIA), who now have overall control of migration into the UK.

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Over the last few months the BIA have produced some information on the new regime and how it will affect employers (see online at www.bia.homeoffice.gov.uk/sitecontent/documents/employersandsponso
rs/guidancefrom290208/). There was a press release alerting employers to the guidance when it was released, together with an awareness campaign launched by the BIA on radio and through a mail shot to all employers with a PAYE scheme registered.

Recruitment

For individuals recruited up to 28 February 2008 the existing 2004 rules apply, with the checking and copying of documents from Lists 1 or 2. From 29 February onwards the 2004 rules are repealed and the regulations introduced under the Asylum and Immigration Act 2006 come into force.

Employers now face a different framework of checks and penalties if these are not carried out. For the last four years document checks provided employers with a Section 8 defence – Section 8 being the relevant part of the 1996 Act. Carrying out the prescribed checks on all prospective employees will in future provide a ‘statutory excuse’ if the documents later turn out to be fraudulent or the worker is proven not to have the right to
work in the UK.

Whilst the BIA does not expect employers to become immigration officers, they do expect the validity of documents to be assessed. For example, employers will be expected to consider whether the holder is the rightful owner (through the checking of photographs and date of birth to appearance) or whether the document is an obvious forgery.

Acceptable documents

From 29 February 2008, List 1 and 2 become List A and B. Details of the acceptable documents within each list are detailed in the legislation, and within the code of practice on Civil Penalties for Employers and Guidance for Employers on the Avoidance of Unlawful Discrimination in Employment Practice While Seeking to Prevent Illegal Working (see online at the above link)

If the person produces a document(s) from List A the ‘statutory excuse’ is provided for the whole of their employment with you. A significant change has been introduced in that document(s) from List B indicates that the individual only has limited leave to remain in the UK and you are now required to repeat the document check at least every 12 months to ascertain if the employee can now produce documents from List A.

Where they cannot produce documents from List A do not assume that you must automatically dismiss them on the basis that they are an illegal worker. You will need to establish if they are in the process of receiving documents from List A and use that information to inform your decision on the right course of action. There have already been at least two cases of employers found guilty of unfair dismissal for wrongly assuming that continued employment of a worker, who was in the process of being granted leave to remain in the UK, was illegal.

Penalties

If you knowingly employ someone without the right to work in the UK you are committing an offence that carries a new penalty of up to two years in prison and/or an unlimited fine. Failing to establish the statutory excuse by not carrying out the checks also carries a punitive penalty of up to £10,000 per illegal worker, based on the frequency and seriousness of the offence.
This applies equally to new recruits or transfers under TUPE.

In order to avoid charges of racial discrimination the BIA has updated the existing Code of Practice on meeting the legal requirements while recruiting. Tips are provided to help employers do enough to rely on the ‘statutory excuse’ without falling foul of the Race Relations Act.

The Code suggests:

• establishing at what stage you will request documents from applicants (first interview, second interview, short list) and apply this to all candidates at that stage;
• not treating documents from List B less favourably than List A, or the individual’s that produce them;

and only asking questions about immigration status in order to determine whether there are restrictions on the number of hours they can work each week.

Sean Lamb