Employing Illegal Workers

How to Avoid Employing Illegal Immigrants

Employers in various industries are increasingly grappling with issues related to immigration compliance and are encountering accusations of hiring undocumented immigrants. In accordance with the prevailing immigration regulations, employers bear significant responsibilities when it comes to preventing the employment of individuals without legal immigration status. In instances where employers are discovered to be in violation of their immigration compliance obligations and are accused of hiring individuals lacking proper documentation, they are subject to substantial penalties imposed by the Home Office.

The term “illegal immigrants” does not solely refer to individuals who sneak into the UK via its ports. It encompasses anyone who lacks official permission to enter or stay in the UK, regardless of their method or timing of entry, even if it wasn’t done in a secretive manner. This category includes individuals who initially entered the UK legally, such as those with short-term visas, but have later exceeded their authorized stay.

In the context of the workplace, the term “illegal immigrants” encompasses individuals who fall under immigration control and are ineligible for employment due to their immigration status. This can occur for various reasons, such as having their permission to enter or remain in the UK invalidated, whether through curtailment, revocation, cancellation, expiration, or other causes. It can also occur when their permission is no longer valid or is subject to conditions that prohibit them from engaging in specific types of work.

How to avoid employing illegal immigrants

When conducting prescribed document checks, it is essential to follow these steps:

  • Obtain: Acquire an original document or a combination of documents as outlined in the Home Office’s approved list.
  • Check: Examine the provided documentation’s validity while in the presence of the document holder.
  • Copy: Create and securely store an unalterable copy of the documentation, either electronically or in hardcopy. The format used should be one that cannot be manually modified, such as a jpeg/pdf document or a photocopy.
  • Record: Generate a real-time record specifying the date when the check was conducted. This record can be incorporated into the copy itself or maintained as a separate document. Also, keep a record of when any subsequent checks need to be performed.
  • Retain: Safeguard your copies and records throughout the individual’s employment and for an additional 2 years after their departure. These records may be required to be presented to the Home Office upon request to establish your legal compliance.

Verification of Document Validity to Prevent the Hiring of Unauthorized Workers

When confirming the authenticity of documents submitted as evidence of an employee’s eligibility to work, it is imperative to guarantee that:

  • Ensure the documentation is authentic, unaltered, and in its original form.
  • Confirm that the individual presenting the documents is the rightful holder.
  • Verify the consistency of photographs and dates of birth across multiple documents, ensuring they align with the individual’s appearance.
  • Check that the permission to stay in the UK has not expired, and that any work-related restrictions still allow the intended type of employment, including limitations on working hours.
  • Investigate any disparities in names across various documents, and when necessary, request additional documentation to clarify differences. Examples of acceptable additional documents include original marriage certificates or divorce decrees, which should also be copied and retained for record-keeping purposes.

You are not expected to possess expertise in detecting fraudulent documentation. Penalties will only apply if it is reasonably evident that the examined documentation was not genuine, did not rightfully belong to the holder, or the employment was not authorized.

In specific cases, you may need to further verify an employee’s right to work by utilizing the Home Office Employer Checking Service. For instance, this may be necessary when an employee has an ongoing appeal or administrative review pending a decision. In such situations, the Home Office will send you a document known as a “Positive Verification Notice” to confirm the individual’s work authorization.

The responsibility for conducting the prescribed document checks lies with you as the employer. This duty cannot be delegated to a third party, such as a recruitment agency. If a third party conducts these checks on your behalf, you will not be able to establish a legal excuse in the event that you are discovered to be employing unauthorized immigrants.

Penalties for employing illegal immigrants

According to the Immigration, Asylum, and Nationality Act of 2006, your business could face a civil penalty of as much as £20,000 for each unauthorized worker you employ. This penalty applies when you hire someone who lacks the necessary authorization to work in the UK or perform the offered job.

Employers could potentially face criminal prosecution if they were aware or had reasonable grounds to believe that an employee lacked legal immigration status. In cases of conviction for employing unauthorized immigrants, penalties may include up to 5 years of imprisonment and/or an unlimited fine.

In addition to the civil and criminal penalties associated with employing unauthorized immigrants, there are several other potential consequences for you or your business:

  1. Loss of Sponsor Status: Your sponsorship license to employ foreign workers may be revoked, resulting in possible business disruption due to the loss of staff found to be unauthorized immigrants and the inability to employ other migrant workers after losing sponsor status.
  2. Temporary Business Closure: Under new regulations, immigration authorities have enhanced powers to temporarily shut down businesses with a history of employing unauthorized immigrants, leading to significant business disruptions through the imposition of illegal working closure notices.
  3. Reputational Damage: The Home Office discloses the identities of employers found guilty of hiring unauthorized immigrants, along with the associated penalty amounts. This could result in significant reputational harm for your business.

By diligently conducting prescribed document checks, you may establish a “statutory excuse” to contest a Home Office penalty, providing an essential layer of protection against these potential consequences.

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