Home / Services / Immigration & Visas /

Controlling our borders - An employers responsibilities

Government Policy is to push the burden of immigration compliance onto those who employ migrant workers. Employers who fail to police their foreign national employees face tough criminal and civil penalties and adverse publicity. Since the new regime was introduced last year, large numbers of businesses have already received significant fines, which can be up to £10,000.00 per employee, and many have been named and shamed on the Home Office website and in the media. Any employer who has not diligently kept track of the immigration status of those they are employing (a requirement since 1997) is vulnerable. In this article, Louise Boyes highlights the main pit falls to watch out for, and strategies needed, to protect your business from costly penalties and damaging media attention.

When employing an overseas national the onus is on the employer to ensure that they may legally employ that worker. In other words, they must ensure that the person concerned is permitted to work in the UK. Prior to the 29th February 2008, when the new Civil Penalty for employing illegal workers was introduced, the only sanction that employers faced was a criminal prosecution for employing illegal workers. Such prosecutions were rare. There were only 77 successful prosecutions between 1997 and 2007. Contrast that with the 4,751 enforcement visits which were undertaken by the UK Border Agency between April 2008 and November 2008 resulting in 4,106 workers being arrested. Work place raids have been carried out in unprecedented numbers with many businesses being served with Penalty Notices of up to £10,000.00 per worker, sometimes resulting in total Penalties in excess of £50-60,000.00.

A typical visit involves the unannounced arrival of a number of UK Border Agency officials, who then seal off exits, round up staff members, and search through personnel files, to establish whether or not the correct documentary evidence and proof of the right to work has been placed on the file. Raids can cause disruption to business operations, with those potentially suspected of not having permission to work being arrested and taken away. It is not unknown for members of the press to be invited to witness raids, and for police and immigration officials to arrive in a large number at the premises concerned. If illegal workers are found employers will normally receive a Civil Penalty Notice within a month or so of the visit.

The sanctions available can be anything from a warning through to a penalty of £10,000.00 per worker. There is a right to seek a review of the decision, and a right to appeal to the County Court.

Employers who are found to have ‘knowingly’ employed an illegal worker face an unlimited fine and a prison sentence of up to 2 years. Businesses penalised or prosecuted are named on the Home Office website. It is Home Office policy to alert the media when a Civil Penalty has have been successfully imposed upon an employer.

Are your employees permitted to work? - points to remember

• Never assume that because someone appears ‘British’, or does not appear to be from overseas, that they are permitted to work. Employers who only carry out checks on those workers that they think to be foreign, are laying themselves open to a race discrimination claim.

• The type of documents that you are required to retain for an individual employee depends upon when they were first employed.

• The checks required have become increasingly onerous over the years, and so it is important that employers hold copies of the required documentation, in the correct format, for each individual employee.

• If employers have retained copies of certain prescribed documents on their personnel file then this will be a defence against employing someone who turns out to be working illegally. However, it is crucial that copies of the documents concerned are retained in the correct form, and that employers do not substitute other types of documents instead as proof of permission to work.

• Where there is a gap in a worker’s employment then further document checks should be carried out when the worker is re-employed

 

How to deal with a UK border agency visit

• At the beginning of the visit you should be provided with paperwork (a warrant) demonstrating that the UK Border Agency is allowed to visit your premises and confirming what search and seizure powers they have. Check this documentation carefully.

• At the end of the visit, if illegal workers are found, or your documentation is not in order, you may be asked to sign paperwork provided by the UK Border Agency. Check this carefully to ensure that it is accurate before signing anything.

• If you are served with a Civil Penalty Notice this does not necessary mean that a Civil Penalty will automatically follow. You have a right to make further representations to the UK Border Agency within 28 days. There are a whole range of factors which the UK Border Agency can take into account when deciding whether or not to impose a Civil Penalty, or the amount of that Civil Penalty.

• If you are unable to obtain a satisfactory outcome from making representations to the UK Border Agency against imposition of a Civil Penalty then there is a right of appeal to the County Court.

 

For further information on protecting your business, or to challenge a Civil Penalty Notice,  contact Louise Boyes, Head of Immigration, on LBoyes@fjg.co.uk or on 01206 835270.