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Employing foreign staff

28 February 2008

New penalties for hiring illegal workers are part of the Government's border controls package introduced this week, warns solicitor Nick Arron

The problem

I've heard that new fines are being brought in for employers who take on illegal workers. What do I need to know?

The law

From 29 February new penalties can be imposed on employers who negligently hire illegal workers. The new measures are part of a broader package of proposals introduced to tackle illegal immigration.

The maximum fine will be £10,000 for each illegal worker found at a business, even if employers believed the person was in the UK legitimately. Furthermore, employers who are found to have knowingly hired illegal workers could incur an unlimited fine and could face a prison sentence.

Expert advice

The increased fines mean you must assess your employment procedures and ensure that your staff can legitimately work here. Under the new rules, you can avoid the fine if you can establish an "excuse" by checking and copying certain original documents before you begin employment of that individual.

The Government has made two lists. If the person provides a document, or documents, from List A, you will have established an excuse for the duration of their employment if it later materialises that they were illegal immigrants. Documents in List A show that the worker is entitled to stay in the UK permanently and include:

  • A passport showing that the holder is a citizen of the United Kingdom and Colonies, having the right of abode in the UK.

  • A passport or ID card showing that the holder is a national of the European Economic Area (EEA) or Switzerland.

  • A residence permit, registration certificate or document certifying or indicating permanent residence issued by the Home Office or the Border and Immigration Agency (BIA) to a national of an EEA country or Switzerland.

  • 13 documents are listed in total.

Documents from List B indicate that the worker has only limited leave to be in the UK. If the new employee produces a document from this list, you should ensure that you recheck their documents within 12 months and try to obtain a document from List A.

It is, therefore, crucial that you check identity documents for every new worker. Clearly, the documents from List A are preferred. In no circumstances should you accept a letter simply detailing the person's employment status.

When checking the applicant's documents you should also satisfy yourself that they are the rightful holder - so make sure that the picture, name and date of birth match. Check any expiry date, too. Finally, ensure you take copies for personnel files in case you need to produce them later.

To assist employers, the BIA will issue a code of practice, which should provide guidance on how to avoid penalties in a way that does not result in unlawful race discrimination. This should aid employers who carry out checks only on workers who they believe are not British citizens - for example, on the basis or race or ethnicity - who could find this is used against them as evidence in any proceedings brought under race relations legislation.

The best advice is to tread carefully and use the guidance provided.

The reforms also introduce a system of compulsory ID cards for foreign nationals.

Beware!

The BIA undertakes regular enforcement operations against illegal working throughout the UK. In January, 49 people were arrested in a single raid in Chinatown, and 14 people were arrested at a restaurant in Ipswich. In 2006 alone the BIA carried out more than 5,200 illegal working operations and removed more than 22,000 people from the UK.

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