Immigration minister James Brokenshire has recently issued a warning that the government is planning to crackdown on businesses employing illegal workers. It has been announced that Immigration Enforcement teams will carry out more raids on businesses working in partnership with organisations such as HM Revenue & Customs, the Gangmasters’ Licensing Authority and the Health & Safety Executive.

Mr Brokenshire said that “Experience tells us that employers who are prepared to cheat employment rules are also likely to breach health and safety rules and pay insufficient tax. That’s why our new approach will be to use the full force of government machinery to hit them from all angles and take away the unfair advantage enjoyed by those who employ illegal migrants.”

It has been reported that raids will be carried out on cleaning firms, building sites and care homes in particular.  It was estimated in 2009 by the London School of Economics that the number of illegal residents in the UK was around 618,000 and according to the Oxford Migration Observatory the figure could now be between 420,000 and 860,000.

However, the campaign group Migration Watch suggested in 2010 that the figure was closer to 1.1million.  These discrepancies highlight the difficulties in establishing the extent of illegal working. 

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There are three different regimes for establishing a right to work in the UK depending on the employee’s start date. For those employed after May 2014 the relevant provisions are contained within the Immigration, Asylum and Nationality Act 2006 and the Code of Practice issued in May 2014. 

It is important that employers comply with the relevant rules as there are substantial penalties for non-compliance. If an employer unwittingly employs an illegal worker there is a maximum penalty of £20,000 for each individual who does not have the right to work.

Alternatively, if an employer is found to have knowingly employed an illegal worker the employer can be deemed to commit a criminal offence and the penalty can be a prison sentence or an unlimited fine. 

Employers who unwittingly employ an illegal worker can avoid a financial penalty if they can evidence that they carried out the correct checks before the employee started work. This is known as the “Statutory Excuse”.

The documents an employer is required to view from the employee depends on the employee’s immigration status. The Government has produced an Employer’s Guide to Acceptable Right to Work Documents, which helps employers navigate the complexities of immigration checks. 

Employers may be surprised to note that conducting the checks on the day that an employee commences work will not provide the employer with a “Statutory Excuse”. The documents must be checked before the employee starts.

The original documents should be checked and copies kept along with a record of the date the check was carried out. These copies should be retained for the entirety of the employment relationship and at least two years following termination.

Employers may assume that where they acquire employees through the Transfer of Undertakings (Protection of Employment) Regulations 2006, they can rely on the checks carried out by the previous employer. This is not the case. Within the first 60 days following the transfer, original identification checks of the transferring employees must be undertaken in order to rely on a “Statutory Excuse”.

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In addition, employers should keep records of any restrictions placed on an individual’s right to work and put in place systems to prevent any breaches of the restrictions. This is likely to be particularly relevant where the employee is a student.

Under the 2014 Code of Practice, if an employee has only temporary permission to work in the UK, their employer is required to conduct a follow up check when the permission expires.

In order to minimise the risk of any discrimination complaints, employers must approach the issue carefully and ensure that checks are carried out consistently on all prospective employees.

Ideally employers should conduct the recruitment process as normal and only query an employee’s right to work in the UK once the successful candidate has been chosen. It is advisable to ensure that any offer of employment is conditional on the prospective employee having and maintaining the right to work in the UK.

The Home Office has issued a useful code of practice to assist employers in avoiding discrimination (Avoiding discrimination while preventing illegal working: code of practice). The relevant codes of practice provide useful guidance in this difficult area.

Kristie Willis is a solicitor at BTMK Solicitors Limited

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