Background
As of August 2005 those granted refugee status or Humanitarian Protection have been granted five years limited leave to enter or remain in the UK whereby after the five years individuals are able to extend their leave and should do so by applying to the UK Border Agency. Applicants may, on application, be granted Indefinite Leave to Remain in the UK which is also known as settlement.
The law:
Under the UK laws you as an employer will be seen as acting unlawfully if you employ a person who does not have the right to work in the UK. However, the UK Border Agency is aiming to work with employers in order to ensure that illegal workers do not obtain work in the UK. Equally, the UK Border Agency continues to take tough action against employers who make use of illegal labour.
Right to work
The right to work varies depending on an individual’s status.
Term- Asylum seekers_ This term is used when referring to individuals who have made an application to be recognised as a refugee under the 1951 United Nations Convention Relating to the Status of Refugees and the 1967 Protocol on the basis that it would contradict UK’s obligation if they were removed. Asylum seekers cannot be removed from the UK unless their asylum application has been fully considered and all appeal rights have been exhausted.
Employer: Individuals who are seen to be asylum seekers do not have the right to work and can only work lawfully if the UK Border Agency has lifted work restrictions on them. It must be noted that only a small number of asylum seekers are allowed to work in the UK whilst their application is pending. Such individuals will hold a Home Office issued Application Registration Card (ARC) which will clearly state “allowed to work” or “employment permitted” on both sides of the card. Employers must note that in the near future ARC’s will be issued with new wording which will be “UK Application Registration Card” instead of the current “IND Application Registration Card”, please note that both are acceptable.
If you as an employer wish to check on this please click here to find more information on the next steps you need to take. Summary Guidance for Employers under the Section “How to Establish the Excuse against Payment of a Civil Penalty” (pages 9-14):
Please note that as an employer you will only be able to escape liability to pay a civil penalty if the ARC has been checked by the UK Border Agency Employer Checking Service, you must inform your employee before undertaking such checks. Please click here for details. (www.ukba.homeoffice.gov.uk/employingmigrants)
Employers must ensure that checks are carried out at least once every 12 months. If an employer receives an ARC which states “forbidden from taking employment’ or
‘employment prohibited’ then the holder does not have the right to work in the UK, if as an employer you do employee such a person you may be liable for a civil penalty as you will be employing an illegal migrant worker and can be charged with a criminal offence of knowingly employing an illegal person, you may be excused if the person is able to demonstrate entitlement to work in the UK. Please note that a Standard Acknowledgement Letter (SAL) or an Immigration Service Letter is not evidence of permission to work.
Term- Refugee status_ once an asylum seeker has a successful claim they are granted refugee status. Foreign nationals who have been allowed to remain in the UK because they have established a well-founded fear of persecution are described as “refugees”. If a person does not qualify protection under the 1951 Geneva Convention but remains to have a risk of serious harm if removed and returned to their country of origin then Humanitarian Protection is granted.
Employers: Please be aware that refugees and individuals who have been recognised as needing Humanitarian Protection, as long as they continue to hold their status; do not have any work restrictions. The majority of refugees or those with Humanitarian Protection are usually able to demonstrate their status and provide the right to work. What is known as an Immigration Status Document (ISD) may be provided, this is issued from the Home Office to the holder and encloses an endorsement which indicates that the holder has the right to remain in the UK and is allowed to work. Employers are encouraged to copy this document and retain for future reference. Employees may also provide a letter which has been issued to them from the Home Office, similar to the ISD this letter will indicate the right of employment and leave to remain.
Term_ Settlement (Indefinite Leave to Remain)_ As of August 2005, those who have been granted refugee status or Humanitarian protection have been given 5 years leave to remain in the UK and once this finished they have the right to apply for a settlement and will subsequently be granted Indefinite Leave to Remain.
Employer: Please note that if you have an employee or prospective employee who does submit an application for settlement then they will surrender all original status documents to the Home Office. Although the Home Office will provide an acknowledgement letter, because your employee will no longer have any original documents, you are advised to contact the Employer Checking Service to be able to verify formally if the application is being considered.
The Employer Checking Service:
This can be used by employers to verify an individual’s right to work in the UK of a person has an outstanding application or an appeal with the UK Border Agency or the person presents an application registration card that shows the holder is entitled to work.
Steps of Checking Service:
In order to request such a check you must complete a form by clicking here www.ukba.homeoffice.gov.
uk/sitecontent/applicationforms/ecs/requestform.
Once the form is completed, please email it to: Employerchecking@ukba.gsi.gov.uk.
If you require further advise contact the helpline on 0300 123 4699.
Please note that it is your responsibility as the employer to inform the employee that a check will be undertaken.
If you require further information please feel free to contact our experienced lawyers on 0207 569 3035 or email us at info@ergensharif.co.uk.
Lorin Sulaiman, Ergen & Sharif
Further guidance has been published today for the benefit of employers. It is said that the new guidance will assist employers and increase their understanding of the law around illegal working and the laws that employers need to comply with.
This new guidance document is an updated version of the original guidance that was published in February 2008. The UK Border Agency stresses that this new document introduced includes comprehensive details as to the document checks employers are required to undertake and as well as providing current images of documents, stamps and endorsements employers may be faced with as part of the evidence that migrant employees may provide.
The new document includes amendments and changes, mainly the following:
Firstly, the new document confirms that employers are able to accept evidence of status or right to undertake employment in an expired passport/travel document (except the certificate of entitlement to the right of abode) this is found on pages 20 and 32.
Secondly, the document includes up to date images of documents, stamps and endorsements.
Thirdly, the new document includes two new appendices, these are Appendix B ('Employing asylum seekers and refugees') and Appendix D ('Employing students')
And finally, the document provides up to date contact information for further support and information for employers.