Business Law & Compliance

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Employing immigrants: How to stay on the right side of the law

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Earlier this year, in seeking to bolster foreign investment and encourage business growth, Home Secretary Theresa May said her department would simplify the immigration system for business travellers.

In announcing the changes she said: “Fine-tuning the immigration system will help ensure we are demonstrating to the rest of the world that Britain remains open for business and that visitors are always welcome in the UK, whether they come for leisure or work.”

It remains to be seen what Ms May’s plans will deliver and of course, improvements to the way we manage immigration in this country are welcome but it is arguable the current system still places too great a regulatory burden on British business. 

Stifling growth?

I come across dozens of businesses and recruiters who are looking to fill a range of roles every day. 

One of the most noticeable things about those who are seeking to recruit overseas nationals who are based in the UK is that they face an immense challenge in avoiding red tape and staying on the right side of the law.

Under the current government, the rules have become progressively more complex, not least because the burden of checking compliance has increasingly shifted from the Home Office to business owners themselves.

The risks of getting it wrong are considerable. The penalty for employing an overseas national who does not have the right to work in the UK stands at £20,000 per illegal worker and can trigger criminal prosecution.

Business leaders and HR professionals have argued vehemently for a reduction in red tape to enable them to recruit from the migrant population in order to stimulate growth. Many HR professionals acknowledge how it offers an invaluable source of highly skilled employees who can fill gaps in the current workforce.

Staying on the right side of the law

However, it can be a big challenge to stay on the right side of the law. Even though the immigration system is highly complex, there are some important issues which HR professionals must be aware of in order to comply and avoid sanction by the UK Border Agency.

Knowing how to check whether an applicant has the right to live and work in the UK isn’t always a straightforward task. The government’s checking service is worth a look and if in doubt you should seek professional advice. 

In short, the rules dictate that providing a person has permission to be in the UK and that their permission allows them to work (see box), employers must conduct an initial right to work check on all employees and must not discriminate.

You must request their passport and any other document, such as a biometric residence permit or immigration status document that confirms their right to work and you have to be satisfied that the documents are in the employee’s name, are valid and give them the right to live and work in the UK.

Maintaining a robust audit trail is essential, so employers should keep copies of all relevant documents and record the date they were checked. 

Where an employee has limited leave to remain in the UK, depending on the type of document they provide evidencing their right to work in the UK, employer checks must either be undertaken at the time of expiry of the right to work, or every 6 months. 

If employees have no time limit on their leave to remain, employers must keep copies of their documents but do not need to carry out a further right to work check during their employment.

Nevertheless, the Home Office’s regime of fines is a reality perhaps best illustrated by a raid in January 2015 at a Hertfordshire restaurant in which seven suspected illegal immigrants were arrested. Putting aside the fate of those individuals, the restaurant owner now faces up to £20 000 per violation unless they can prove that they checked the workers’ documents correctly.

Ultimately if checks are carried out properly and the required copy documents kept, a business will be protected from incurring a fine. However, if the Home Office does impose a fine, you will also have the right to challenge, but with an adversary as complex as the immigration system, it is highly advisable to seek professional advice.

Emma Brooksbank is head of immigration at national law firm Simpson Millar.

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