Preventing illegal working – why you must make checks
Home Office rules on who can legally work in the UK were updated earlier this year and it’s vital that employers are fully aware of their obligations.
Failure to comply with the updated Code of Practice on preventing illegal working can result in employers being fined £20,000 per employee, so you need to know if your workers have the right to work here.
This Code of Practice sets out what checks employers should make to avoid a fine – and highlights that it’s not only the immigration status of potential new staff you need to look at.
Big problems can also arise when the status of one of your existing workers changes following the breakup of a relationship.
Our advisers recently took a call from an employer who had to let go a valued non‐EU employee because his marriage to a British citizen had ended. His permission to stay here was based on his marital status so, when he got divorced, he was no longer eligible to work or live in the UK.
Where a visa is based on a person’s relationship, they must, by law inform the Home Office when they divorce or separate from their partner. They must then either leave the UK or, if they want to remain, find out if they are eligible to apply for a different visa.
In this case, the man in question left the country. His departure came as a blow for his employer as the employee had been a key part of the team and losing him created operational difficulties.
However, had the employer not been aware of this worker’s change in personal circumstances, then the firm would have inadvertently committed a criminal offence by continuing to employ him.
Receiving a Civil Penalty Notice is not only costly in monetary terms. It undermines long‐standing business relationships and can seriously hamper a company’s ability to take on skilled workers from outside the European Economic Area.
This takes you through the actions required to undertake an online check.
If this step fails to confirm that the job applicant is eligible to work in the UK, then it is not ok to just go ahead and take them on the because you made the official checks.
If the person can’t show you their documents because of an outstanding appeal, review or application with the Home Office, then you must ask the Home Office to check an existing employee’s or potential employee’s immigration status. You should also use the Home Office’s Employer Checking Service if the job applicant or employee has an Application Registration Card, a Certificate of Application that’s less than six months old or if they are a Commonwealth citizen who started living in Britain before 1988. You can do this online at www.gov.uk/employee‐immigrationemployment‐status
As an employer, if you know, or have reasonable cause to believe, that an individual is not permitted to work in the UK, but you give them the job anyway, then you’re breaking the law. And, if found guilty you could receive an unlimited fine or go to jail.
Dealing with permission to work issues can be far from straightforward, and it’s crucial you get it right. We have a lot of experience in this area so talk to us for support, guidance and advice.
A qualified employment law solicitor and our managing director, Angela has unparalleled legal expertise and decades of experience and knowledge to draw from. She’s a passionate speaker and writer that loves to keep employers updated with upcoming changes to legislation, and is a regular guest speaker on BBC Leicester Radio.