New rules with effect from February 29, 2008 on illegal migrant working

Apr 17 2008 By The Journal

April 17 2008

Ms L Lodger

Human Resources Director

Top North East Co Ltd

Newcastle upon Tyne

NEXX 3XX

Dear Ms Lodger

AS requested, I’m providing you with some basic advice on the new rules to prevent illegal migrant working, which came into force on February 29 2008.

The new rules are set out in the Immigration, Asylum and Nationality Act 2006. Under this Act, any employer who employs someone who is subject to immigration control aged over 16, who is not entitled to undertake the work you are offering to him, will be liable to pay a civil penalty of up to £10,000 per illegal worker.

There are also criminal sanctions for any employer who knowingly employs someone who is not permitted to work. In that case, the employer could be imprisoned for up to two years, or given an unlimited fine.

However, on the plus side, the new Act gives you the opportunity to defend yourself against any allegation that you have employed an illegal worker. The defence will be available to you if, before you employ the applicant, you verify and copy certain original documents, or combinations of documents, which you should ask the applicant to supply to you.

The documents are set out in lists drawn up by the Government, known as “List A” and “List B”. If the applicant is not subject to immigration control, or has no restrictions on his stay in the UK, he should be able to produce a document, or a combination of documents, from List A. If his right to be in the UK is time-limited, he will supply documents from List B.

You will need to check the documents carefully to satisfy yourself that the applicant is the person named in the documents he has presented to you. I can advise you on how to do this, if you wish.

If List B documents have been supplied, you need to remember to repeat your checks at least once every 12 months.

However, I am concerned that in performing the checks you do not put yourself at risk of a race discrimination claim. That risk would arise if you were to perform the checks only on certain applicants. They might argue that you are subjecting them to a detriment on the ground of their race. My advice to you is that you should treat all job applicants in the same way. In other words, you should require documents from and perform checks on each job applicant. To prove that you have done so, keep a file containing copies of the documents, and setting down the steps you have taken to verify them.

If you need me to supply you with copies of List A and List B, or if you need any further advice in the matter, please do not hesitate to contact me. My direct line is (0191) 226-7821 and email s.watson@sintons.co.uk. Further employment law advice is also available at www.sintons.co.uk

Yours sincerely,

Sheila Watson

Partner

Employment Law Group

This article of necessity is general in nature and provides only a general introduction to this topic. The circumstances affecting particular employers vary considerably and employers should seek and act only on the specific recommendations of their own professional advisers.