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Legal Insight: How to employ migrant workers legally

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24th Aug 2012
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Tesco could reportedly be fined up to £200,000 by the UK Border Agency for employing staff illegally.

The news came to light following the Agency’s arrest of 20 foreign students at one of Tesco’s warehouses, after they were found to have been working significantly longer hours than their visas permitted.   But a key problem for all UK employers in this context is that they are responsible for ensuring that all of their employees have a valid right to work in the country. Those who fail to do so can be subject to a fine of up to £10,000 for each illegal worker discovered.   For employers that knowingly employ illegal workers, however, the price is much higher – they can face an unlimited fine, while the director or manager responsible can be subject to a prison sentence of up to two years.   Visas for students from outside of the European Economic Area enable them to work full-time outside of the school term. During term time, however, they may only work for a maximum of either 10 or 20 hours per week, depending on their particular visa.   This means that employers must not allow these students to work for longer than permitted during the school term.   However, the law does permit employers to be excused from paying a fine if they have made a genuine effort to carry out the proper checks in order to ensure that all of their employees are entitled to work in their assigned roles and for a permitted number of hours.  Cracking down  Fines may also be reduced if it is an employer’s first offence, or if they co-operate with the UKBA ahead of and following a raid on their premises. But it should be noted that there is never a permissible excuse for employers that have knowingly employed illegal migrant workers. There is no suggestion that this was the case with Tesco, however.   What is clear though is that the UKBA is currently seeking to crack down on illegal working. While previously it had focussed on restaurants and nail parlours, the Agency is evidently now broadening its reach.   It is, therefore, very important for all HR directors to ensure that their houses are in order. For example, it is best practice to make all offers of employment subject to applicants providing you with satisfactory evidence of their right to work in the UK, prior to employment commencing.   All applicants should be treated in exactly the same way in this respect. All documents should be checked, photocopied, signed and dated by a member of HR or a line manager, and kept on file until two years after the employee stops working for you.   If the documentation only gives someone a temporary right to work in the UK, this check should be repeated every year.  While you are not expected to be an expert in spotting forgeries, you should, nonetheless, take reasonable steps to ensure that documents are genuine. This includes checking that dates, photos and names match up across all of the documents provided and that the photograph matches the individual's appearance.  Right to work  If you do not already hold these documents for existing employees, it would be worth asking that they be provided as soon as is practicable.   It is also useful to be aware of who can and cannot work in the UK. The following people are permitted to work here full-time without a visa: 

  • British nationals, along with nationals of the EEA and Switzerland can work in the UK without a visa. The EEA includes all of the EU, plus Iceland, Liechtenstein and Norway.
  • Nationals of Bulgaria and Romania may live here without a visa, but must still obtain authorisation to work before starting employment.
  • Family members of EEA and Swiss nationals may also work in the UK, so long as that national is lawfully residing in the UK as well.

 

Everyone else needs to have a visa or another form of permission to work. But even in the case of British nationals, you should ensure that you have proof of their nationality on file.

Although there is a wide variety of visas and work permits, the UKBA helps in wading through the morass by providing a comprehensive list of documents that confirm a valid right to work. They can be found at the following link: bit.ly/14A5Ra.   Moreover, it is worth noting that, while it may seem tempting to automatically turn away migrant applicants to avoid potential problems, doing so would expose you to claims of race discrimination.   Finally, if a recruit is unable or refuses to provide evidence of their right to work, or if it comes to light that an existing employee does not have a valid right to work in the UK, it would be advisable to take legal advice on the best way to resolve the situation in a way that respects both immigration rules and employment law. 

Daniel Jones is a member of law firm Birketts' corporate immigration team.

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By HazelStimpson
28th Aug 2012 11:37

 I was pleased to see the confirmation in writing in the most recent (May 2012) full guide from the UK Border Agency on preventing illegal working in the UK that the right to work restrictions of the EU8 Accession State nationals has ended.  (See section 7, page 50 final paragraph in the link to the original posting.) 

Hazel.

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