Are your employees "legal"?

The arrest of four people following a raid on a restaurant in Leatherhead in April is a timely reminder of the importance of immigration status checks by employers. In this case, four Bangladeshi men were arrested for over-staying their visas, and a fifth was escorted from the premises pending a decision on whether or not he had the right to remain in the UK.

You may think you have nothing to worry about – all your employees are British nationals so it’s not a problem. But are you really sure about that? What if John Smith turns out not to be as British as he looks and sounds? You could be in for a nasty shock – in the shape of a fine of up to £10,000 per illegal worker!

The fact is that you should check that every employee or worker in your organisation has the right to work in the UK – not just the ones who look as though they may not be indigenous Brits. In fact, if you only check the immigration status of those employees who do not fit the British racial stereotype, you could be accused of race discrimination. So what should you actually do?

How to check immigration status

Best practice is for all offers of employment to state that they are conditional upon the new recruit providing proof of their right to work in the UK. In the offer letter, you should request sight of documentary evidence acceptable to the UK Border Agency (UKBA), and when the person accepts the offer and turns up for work you should take a photocopy of the documentary evidence and place it in their personnel file.

In most cases, the easiest thing is to ask the new recruit to bring their passport in to the workplace on the first day of employment. If they possess a UK passport, or a passport from any member of the European Economic Area (EEA) or Switzerland, they have an unfettered right to work here, so all you need to do is copy the front cover plus the page bearing the photograph and personal details – job done. If they don’t have a passport you should ask to see a full Birth Certificate plus an official document bearing their National Insurance number, e.g. a P45 or P60.

If they are not UK or EEA or Swiss nationals, or if they don’t have a Birth Certificate either, then you will need to seek other types of documentary evidence, such as a residence permit, work permit, naturalisation papers, etc. A full list of the acceptable documents is available on the UKBA website. If a person’s right to work is time-limited, you should keep a note of the date when it is due to expire, and ask for documentary evidence that it has been renewed.

Why take a copy?

As with so many legal requirements, it’s not sufficient just to do the right thing, you must be able to prove you have done it – hence the importance of taking a photocopy. It is good practice to sign and date the photocopy to prove when the checks were carried out, and by whom. Don’t make the same mistake as Baroness Scotland did back in 2010, when she was fined £5,000 for not being able to prove she had checked the immigration status of a person she had engaged, who later turned out to be an illegal immigrant, despite her assertion that she had in fact inspected the employee’s passport.

Remember, the law does not need to prove that you intentionally employed an illegal immigrant, only that you did so. Your defence is that you took reasonable steps to check the situation and that, to the best of your knowledge and belief, the person did have the right to work here. If it turns out that the documents you saw and copied were forgeries, unless it is blindingly obvious that this is the case (e.g. the photograph doesn’t look like the person), it is unlikely that you will be penalised.

What if an employee’s work permit runs out?

If you employ somebody on a time-limited work permit or visa, and if that permit is not renewed and the person thus becomes an illegal immigrant, you should dismiss them without delay. The grounds for dismissal in such a case will be “a legal reason preventing continued employment” and you don’t need to give warnings or go through a formal procedure, although you do obviously need to be very sure of your facts before you dismiss anybody summarily (i.e. without notice). Again, check your facts and don’t jump to conclusions.

If you haven’t already complied with the immigration checks in respect of any existing employees, you should do so now. Explain that you are conducting a “tidy up” exercise and that everybody is being asked to produce this evidence. They may grumble and accuse you of going “over the top”, but better safe than sorry - £10,000 is a great deal of money and I’m sure you can think of better ways to spend it than on a fine.