Although Mr Harper did carry out various checks throughout her employment, recent checks by immigration officials unveiled that she did not have a right to stay in the UK. Mr Harper consequently faces a potential fine for not keeping copies of the right to work documents shown to him.
This report has caused much debate and unsurprisingly raises concerns for employers who are less clued up on the immigration rules, but still expected to carry out right to work checks on their migrant employees. Furthermore the current Home Office guidance on right to work checks have become increasingly more convoluted since the civil penalty scheme was introduced in 2008.
To simplify this process here are some essential tips on the employment checks to be carried out by SMEs to ensure a statutory excuse is established against civil penalties:-
1. Be satisfied that your prospective employee has the correct right to work documents before their employment begins.
2. Only accept original documents as set out in Home Office guidance to prevent illegal working.
3. Take copies of the right to work documents that cannot be altered e.g. a scan or photocopy and certify the copies with the date and your signature.
4. Be reasonably satisfied that the employees appearance matches or is similar to that of the photograph in their passport/visa document before you.
5. When checking passports be conscious of the expiry dates to ensure the document is valid.
6. For visa documents ensure you copy the valid visa permit (not any old visa) – check the expiry date and their work restrictions.
7. If ever in doubt with a document produced, ask for an explanation and record it. If you are still not satisfied with the explanation, contact the Home Office employer helpline to verify their immigration status.
8. Educate your staff on recent immigration changes and make sure your current HR policies and procedures reflect the current legal position.
9. Treat all prospective employees equally when completing checks to prevent discrimination and potential employment claims
10. If outsourcing right to work checks take extra precaution: the burden is on you as the employer and not any third party.
The Immigration Bill announced in October 2013 is likely to become law in the upcoming months and has proposed various changes that will have a direct impact on your business including the increasing of the maximum civil penalty imposed for an employee without right to work documents, from 10,000 to 20,000. Further changes to be mindful of include:
- The removal of annual checks on employees with time limited permission to work in the UK and replacing them with a check at the point of visa expiry;
- The reduction of the range of acceptable documents that employees can produce as evidence of the right to work;
- The elimination of a warning letter for first time offenders, despite many new SMEs not having experience of the immigration rules.
There is no question that the governments purpose through the Bill is to appear more stringent against employers attempting to exploit migrant employees, however it is evident that their aim is to simultaneously make the process simpler for legitimate businesses to comply with the right to work checks whilst reducing administrative costs. SMEs do face challenges on a daily basis and to manage risk related to illegal working is imperative to safeguard your business and promote immigration compliance.
Tijen Ahmet is an Immigration Solicitor at SA Law