Unless a person is a British Citizen, settled person with permanent residence or a member of the EEA (European Economic Area) or Switzerland, they are likely to need permission to work in the UK. The Government has set measures to prevent illegal working in UK markets and there is a positive duty on the employer to ensure that they employ people through legal means.  

In order to better handle illegal working, the Government issued changes on 29^th February 2008 of which employers must be aware. These changes are provided in the Immigration, Asylum and Nationality Act 2006 which sets out the law on preventing illegal working. It provides that:

·         Employers can be imposed with fines where they employ people over 16 who are not allowed to work

A code of practice has been introduced for UKBA officials to consider when calculating fines.

UKBA (UK Border Agency) routinely carries out enforcement and compliance checks at work places. Where they discover any illegal migrants working in the work place, they will issue the employer with a Notification of potential liability (NOPL). The UKBA civil penalty compliance team will then consider whether or not to issue a notification of liability (NOL) and a civil penalty on the employer. UK based employers are required by law to verify the immigration status of their employees. They can do this by checking one of the following:

·         Passport of the employee showing that the person is British or has a right of abode in the UK

·         Residence permit issued by UKBA to an EEA (European Economic Area) national.

·         Passport or travel document endorsed with indefinite leave to remain in the UK

·         Passport or other document endorsed with permission to work in the UK

·         Document showing a work permit or other visa category in which the person can work

Alternatively, employers can contact UKBA (employer checking service) to determine the potential employee’s status or where for instance, the employee’s documents are with the Home Office. UKBA provides two lists, List A and List B which contain documents that the employer needs to check before hiring an employee. Depending on the employee’s situation, the employer may need to see a combination of documents from these lists and the documents must be originals. The employer is required to check the validity of the document including

·         Checking the photograph which must match the appearance of the potential employee

·         Checking the date of birth corresponds with other documents and appearance of employee

·         Checking the expiry dates of leave to remain/permission to work

·         Checking any endorsements (visa/stamps) to determine that the employee is eligible to do the work on offer

·         Being satisfied that the documents are genuine and that they have not been tampered with

Civil Penalties

UKBA assess the amount of the penalty the employer is liable to pay and this will depend on the nature of the circumstances and compliance by the employer. They may issue a warning letter or the maximum fine of £10,000 per worker. Lists of civil penalties issued on employers can be found on UKBA’s website.

Where an NOL and civil penalty is served upon the employer, they must within 28 days take the following action:

·         Either pay the full penalty or

·         Request to make payments in instalments (to the civil penalty compliance team) or

·         Submit an objection against the penalty or

·         Lodge an appeal against the penalty to the County Court

Knowingly employing illegal migrants

Employers can be convicted of a criminal offence under the 2006 Act if they knowingly permit illegal labour. They can be convicted of either

·         A summary offence (up to 6 months imprisonment and/or fine)

·         Conviction upon indictment (up to 2 years imprisonment and/or unlimited fine)

Accession State Workers

Persons from the accession states commonly known as the A8 countries are the following nationals:

·         Czech Republic

·         Estonia

·         Hungary

·         Latvia

·         Lithuania

·         Poland

·         Slovakia

·         Slovenia

These States joined the European Union in May 2004 and are able to work and live in the UK. The Government set up a worker registration scheme requiring members from these States to register with UKBA in order to monitor their participation in the UK labour market. Employers are not legally required to check that these members have registered with UKBA although this is recommended.

A2 Countries

Bulgaria and Romania are referred to as the A2 countries and they have also joined the European Union. They will however, be subject to worker authorisation unless exempt from doing so. They will need to adduce a document confirming that they are exempt or that they have permission to work. The Accession (Immigration Worker Authorisation) Regulations 2006 provide that employers take copies of the relevant authorisation documents. An employer may be liable to prosecution where they employ unauthorised or unregistered employees. The employer may be liable of a fine of up to £5000.

How we can help?

If you have been served with a notice or liability (or potential ability) we can assist you by making representations to UKBA within the 28 days limit. There may be a whole range of factors which the compliance team could consider and this may result in them reducing any fine that is imposed or not imposing a fine but rather, issuing a warning letter (depending on the circumstances of the case). We can also assist with lodging an appeal against the fine where representations have not been accepted.

For further information or a case specific evaluation, please contact one of our lawyers on 0207 569 3035 or alternatively email us at info@ergensharif.co.uk.