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Illegal worker checks get tougher: Don’t get caught out

In July new sanctions and penalties will be enforced against companies that employ illegal workers. What do you need to know?

On 12 May the Home Office emailed a reminder to the construction and legal sector of tougher penalties being imposed on any employers using illegal workers as part of ‘Operation Magnify’ – a UK-wide enforcement and compliance campaign.

The crackdown comes as the Home Office claims that the use of stolen and counterfeit documents for migrant workers to work illegally is still a growing problem within construction.

While the sector more than any other has been the subject of Home Office enforcement checks since October 2015, the penalties are about to get tougher with the introduction of certain provisions of the Immigration Act 2016.

Tougher penalties

From 12 July 2016 the following sanctions and penalties will be enforced under the Immigration Act:

  • An increase in the maximum prison sentence from two to five years, where an employer has “reasonable cause to believe” that they’re employing an illegal worker.
  • A potential custodial sentence of up to six months for those caught working illegally, as well as the power to seize wages.
  • The introduction of a new power to close premises that employ illegal migrants for up to 48 hours. If the employer can prove that it has conducted the appropriate checks, the “closure notice” may be cancelled. Where it cannot, the business may be placed under special compliance requirements, including a period of continued closure.
  • The continuation of fines of up to £20,000 for each illegal worker.

So how can you ensure you’re not caught out by the growing army of criminal gangs that forge documents and organise illegal workers?

The Home Office has been keen to stress that illegal working undermines legitimate employers, harms the reputation of the industry, drives down wages and denies employment to those working in the UK legally.

In one month alone, Operation Magnify resulted in more than 250 arrests, while UK Visas & Immigration also lists employers who have been fined on their website.

Right to work checks

Employers can safeguard themselves against any criminal behaviour by carrying out the recommended ‘Right to Work’ checks.

Prior to an employee starting, it’s important to see a combination of original documents to prove that person’s identity and their right to work, such as an original, valid passport plus an original Biometric Residence Permit from the Home Office (if required) providing evidence of that person’s conditions of their stay (including any limitations to their work).

Check the Home Office guide Prevention of Illegal Working to check which documents are required.

An EU worker will usually have a valid EU passport or national identity card, which will suffice unless they are a Croatian worker (who requires work permission).

EU employees are currently permitted to work on evidence of providing their identity document, however, as a result of the UK’s decision to leave the European Union, the long term rights of EU nationals residing in the UK remains uncertain.

“Prior to an employee starting, it’s important to see a combination of original documents to prove that person’s identity and their right to work”

A common problem is the employment of non-EU students, as they will nearly always be limited to the number of hours they can work (eg 20 hours during term time), and employers should request proof of evidence of study and vacation timetables from the institution.

Of course, some potential employees have been known to carry false documents and the Home Office recognises that employers are not normally experts at recognising fakes.

The government’s guidance on examining identity documents can help minimise the chances of employing an illegal worker. They suggest measures such as checking for paper quality, handwritten alterations and substituted photographs, while ensuring all photos and dates of birth are consistent across documents.

How to support HR teams

Verifying documents is one thing, but being able to demonstrate to the Home Office that you’ve conducted the appropriate checks is another.

It’s worth outsourcing the responsibility of managing documents to an immigration law firm or investing in an automated HR system that tracks and flags key dates such as when residence permits need renewing, when passports expire or sponsorship licenses are due to run out.

A solid system in place with clear lines of responsibility and appropriate checks will help prevent any vulnerabilities being exploited and ensure your organisation doesn’t get caught out.

Jonathan Beech is managing director of Migrate UK

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