Immigration, Asylum & Nationality Act 2006
This legislation imposes penalties on employers who employ adults ( over the age of 16) who are subject to immigration controls and have not been granted leave to enter or remain in the U.K or whose leave is invalid, ineffectual or subject to conditions preventing them accepting the employment (“illegal workers”)
From 27th January 1997 employers prosecuted under the 1996 Act could establish a “statutory defence” by proving that they had checked specific types of documents as laid down by the Government. Changes to the types of documents were introduced from 1 May 2004 and the statutory defence applied up to 28th February 2008. If the defence was established before that date, at the time of recruitment, then it remains for the duration of the employment.
Changes to the law made as from 29th February 2008 under the provisions of the 2006 Act have resulted in:
1. the Secretary of State applying a civil penalty, determined by a Code of practice, on any employer who employs an illegal worker
2. the creation of a new criminal offence of knowingly employing an illegal worker
3. the Secretary of State issuing a Code of Practice to employers on how to avoid unlawful race discrimination when taking steps to avoid employing an illegal worker.
In regard to the civil penalty, which can be up to a maximum of £10,000 for each illegal worker employed, it is possible for employers to establish an “excuse against liability” for payment of the penalty.
Establishing the excuse is achieved by checking and copying one, or a specified combination, of original documents and this must be done BEFORE THE EMPLOYMENT BEGINS.
The type of original documents are as stated in two lists prescribed by the Government – List A shows documents that establish a person’s ongoing entitlement to work in the UK and List B shows documents that indicate restrictions on a person’s entitlement to be in the UK.
In its Guidance for Employers the Border and Immigration Agency at the Home Office sets out three specified steps that should be followed for every new prospective employee intended to be taken on from 29th February 2008 onwards. It is essential for employers to obtain a copy of the Guide which is available from www.bia.homeoffice.gov.uk/employingmigrants
The first step requires prospective employees to provide:
One of the original documents alone or two of the original documents in the specified combinations given in List A
Or
One of the original documents alone or two of the original documents in the specified combinations given in List B.
The PBS job application form sets out the two lists of documents and requires ALL applicants to provide the necessary proof to show their right to work in the UK. Running checks on all recruits, not just those from ethnic minorities, helps avoid the risk of falling foul of the Race Relations Act.
Copies of identity documents for every non-national must be retained for record purposes in accordance with Government guidelines. They must be kept securely for the duration of the individuals’ employment and for a further two years after the employment has ceased.
The “excuse against liability” is lost where the employer allows a worker to do a job he is not permitted to do. A criminal prosecution could also follow for employing an illegal worker.
All PBS information sheets are designed to provide the detail you need to implement best business and employment practices. They are not a detailed commentary on the current law and where advice is needed in a specific case you should contact PBS for expert consultation
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