Preventing illegal working: new rules

Changes to the rules on preventing illegal working were brought in with effect from 29 February 2008. These changes are part of the Government’s overhaul of the UK immigration system and a crackdown on illegal working.

March 13, 2008

Education institutions should expect to face tougher enforcement by the Border and Immigration Agency (BIA) and higher penalties for any breaches of the rules.

The old legislation under Section 8 of the Asylum and Immigration Act 1996 already required employers to carry out document checks for every prospective employee to ensure that he or she had the right to work in the UK. However, a loophole in the law meant that employers were required to check a person’s documentation only once – before the start of their employment – even if the documentation showed that the individual’s right to work or stay in the UK was limited in time. Furthermore, enforcement of these rules has been scant, and the number of prosecutions for breaches was low.

Under the Immigration, Asylum and Nationality Act 2006, this loophole has been addressed. If an individual provides, prior to commencing employment, documents that show that they have no limits on their right to live and work in the UK, no further document checks are required. Where an individual has limited leave to enter or remain in the country, however, an employer will need to carry out the standard document check before the individual starts employment and will have to repeat the document check at least once every 12 months to verify that the individual is still entitled to live and work in the UK.

The new rules apply to employees who started employment on or after 29 February 2008. For employees who started work before this date, the old rules still apply. This means we now have a two-tier system, with the rules under Section 8 of the Asylum and Immigration Act 1996 applying to those who were employed before 29 February 2008, and the new rules under the Immigration, Asylum and Nationality Act 2006 applying to those employed on or after 29 February 2008. The lists of documents that individuals’ documents should be checked against under both the old and new rules can be found at www.bia.homeoffice.gov.uk.

Education institutions must satisfy themselves that it is “reasonably apparent” that the documents are genuine. As with the current law, there is no defence under the new rules if education institutions know that an employee is working illegally. Therefore, provided that full checks have been completed and that the employer did not “knowingly” employ (see below) an illegal worker, institutions will not be liable.

Separately, education institutions that “inherit” employees via a TUPE transfer (whether on a business acquisition or a service provision change following a change of contractor) will not be permitted to rely on the previous employer’s document checks. The incoming institution will have just 28 days after the transfer date to conduct the appropriate document checks for all the transferring staff.

Other key provisions of the new rules include the introduction of a system of civil penalties for employers who employ illegal workers. Under the old system, fines were limited to £5,000 per illegal worker. Fines will now be based on a sliding scale with maximum and minimum penalties. The maximum civil penalty will be £10,000 for each illegal worker.

The new rules also introduce a criminal offence of up to two years in prison and/or an unlimited fine for employers who “knowingly” employ illegal migrant workers. This new criminal offence applies not only to statutory directors but also to all those responsible for “an aspect” of the individual’s employment. For education institutions, this could potentially apply to the governing body and to the senior management team, including those in HR.

It is clear that the Government is placing increased responsibility on education institutions to monitor and regulate their own staff to ensure that its policy on illegal working is enforced in practice. Therefore, if you have not done so already, you should take the following steps as soon as possible to ensure that you are complying with both the old and new rules:

• Review your recruitment/immigration policy and procedures and ensure that these are updated to reflect the current statutory position. An enforcement officer will not just check the copy documents that you have on file for each of your employees but will also look at the thoroughness of your employment and document-checking processes as a whole.

• Make sure that you have carried out the necessary document checks for your current staff and that the checks under the new rules are carried out for all new recruits before they start work. Set a date for future document checks for those individuals who have restrictions on their entitlement to be in the UK.

• Ensure that staff with responsibility for checking documents are aware of the changes and understand the requirements under both the old and new rules. If necessary, provide them with training.

• To ensure that you treat all current and prospective employees in the same way and do not discriminate against anyone on the grounds of race, carry out document checks on all staff, not just those individuals who you believe are non-UK nationals.

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