What your business needs to know about illegal workers

As we approach Brexit, employers now more than ever before need to ensure their employees have the right to work in their business. In 2016, both the offences and penalties relating to the employment of illegal workers broadened significantly, meaning mistakes can be extremely costly.

It is unlawful to employ someone who does not have the right to live and work in the UK or to employ a person who is working in breach of any conditions imposed upon them by the Home Office. Employers have an obligation to prevent illegal working. To comply, employers must carry out right to work checks on all prospective employees before their employment begins; conduct follow-up checks on employees who have a time-limited permission to live and work in the UK; keep records of all the checks carried out; and not employ anyone it knows or has reasonable cause to believe is an illegal worker.

Employers need to follow a three-stage check while avoiding potential claims for discrimination. They need to check all staff, not just those they suspect are foreign.

The first step involves obtaining the employee's original documents proving their right to live and work in the UK. Next, those documents that relate to the individual in question should be checked to see if they are original, unaltered and are valid. Lastly, they should be copied and kept securely with a record of the date of the check and a date for any follow-up check that may be required.

Different documents must be used for employees that have a permanent right to work in comparison to those who have a time-limited right to work. A full list can be found at http://bit.ly/1lbaGUx.

Employers are not expected to be experts in identifying false documents, however they could still be liable to fines if it is ‘reasonably apparent’ that the document is a fake.

If employers breach their obligations they may be liable for both a civil penalty and they could also be found to have committed a criminal offence.

The chief immigration officer has the power to issue an illegal working closure notice, to effectively close a business premises for up to 48-hours to apply for an illegal compliance order.

An illegal compliance order may be issued for up to 12 months and can include conditions prohibiting or restricting access of people to the premises, requiring a specified person to carry out right to work checks and to produce documents following checks in order to prevent illegal working.

Immigration officers now have increased powers to enter business premises to search for documents and to seize and retain evidence in relation to any potential offence. Immigration officers may visit a business on their own initiative if they suspect a business is employing illegal workers or they’ve had a tip off.

With high fines, potential for criminal convictions and negative publicity, employing illegal workers or not undertaking proper checks is unlikely to be a risk many businesses should want to take.    

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