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Illegal immigrant workers

23 March 2006

The problem
You own a restaurant opposite one of the country's best-known restaurants. Last week you saw a small army of police and immigration officials escorting 15 of its staff suspected of working illegally out of the front door and into police vans. You don't want your restaurant to be next.

The law
UK immigration law makes it illegal for a business to employ any individual who doesn't have the right to live in the UK and undertake the work in question.

This is a criminal offence and one that senior management in a business can be personally liable for. It's also an offence for the individual and they can be arrested and ultimately deported.

The Home Office and police have wide-ranging powers of enforcement, including the right to enter premises and seize documents to enforce these laws.

Expert advice
The prospect of a "dawn raid" by the police and Home Office officials is a reality for many businesses in the leisure and hospitality industry and not restricted to high-profile examples such as Conran restaurants. Furthermore, although the raids are often carried out with the co-operation of the business, this is not always the case, and co-operation doesn't prevent the business being prosecuted if offences are found to have taken place. There's also the bad publicity, and last but by no means least, the practical reality - that a Home Office raid will deprive a business of a number of employees, leaving it short-staffed or without key employees.

Critically, the offence committed is one of strict liability. This means the business will be liable even if it didn't know one of its employees was working illegally.

To protect itself, a business must have rigorous immigration checks in place for all new recruits. The basics of these are prescribed by law and are known as the "statutory defence". The checks must be carried out before employment begins.

In essence, every employee must be asked to produce evidence of the right to live and work in the UK. Without these checks, a business has no defence to the immigration offence. It's also important that this is done in all cases, otherwise a business leaves itself open to allegations of race discrimination.

It's also important to go beyond these basic checks and to have systems in place to ensure that staff who are here under the terms of a visa don't breach its terms - for example, by working in excess of the hours allowed under a student visa or overstaying beyond the term of the visa.

If a business finds that, despite its efforts, an existing employee doesn't have the right to live or work in the UK, then it's appropriate to end their employment, following due process.

These various steps will have the effect of giving a business a defence against prosecution and in practice will also keep the number of unknown illegal workers to a minimum, thereby limiting the likelihood of a raid.

Check list

  • Review recruitment practices and procedures. Introduce rigorous pre-employment checks.

  • Train all managers and recruiters in the pre-employment checks and the issues involved.

  • Make failure to comply with the procedures a disciplinary matter for those responsible.

  • Don't turn a blind eye to those you know don't have the right to live and work in the UK.

Beware!
These are criminal offences and the sanctions include fines, currently up to £5,000. Senior managers can also find themselves personally liable.

Under new laws to come in shortly, fines will be more easily applied and will increase to £2,000 per illegal worker.

A new offence of knowingly employing an illegal worker will also be introduced, carrying a punishment of up to two years' imprisonment.

Contact

Michael Bradshaw Employment partner Sports & Leisure Group Charles Russell 8-10 New Fetter Lane London EC4A 1RS Tel: 020 7203 5045 E-mail:
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