Asylum and Immigration compliance

Summary: The existing rules requiring employers to check, before engaging a new employee, that the person is allowed to work in the UK are to be strengthened from May 2004. In many cases, job applicants will have to produce two forms of documentary evidence. Recruitment procedures must be amended accordingly, so that the same checks are performed for every job applicant, not simply those applicants who appear to be foreign.



Under the provisions of the Immigration and Asylum Act 1996, it is a criminal offence to employ someone who is 16 or over and is not entitled to work in the UK. The maximum penalty is currently £5,000. Employers have a statutory defence against prosecution if, before the start of employment, they check and record one of the defined documents that confirm the prospective employee's right to work in the UK. These documents include

• form P45, form P60, or a payslip issued by the previous employer, showing a valid (not a temporary) National Insurance Number
• a National Insurance Number card
• a passport showing the person as a British citizen or having the right of abode in the UK
• a birth certificate issued in the United Kingdom or Republic of Ireland.
• a national identity card issued by a State in the European Economic Area

The full list of acceptable documents, with pictures of each of them appears on the Home Office website, at www.ind.homeoffice.gov.uk/default.asp?pageid=85

Due to the prevalence of fraudulent documents in circulation, the Home Office consulted during 2003 on a number of proposed changes to the documents that employers may accept to provide them with their statutory defence. The intention was to provide two lists of documents; the first would be documents that may be accepted on their own as evidence; the second would be documents of which two must be checked and recorded by the new employer. In particular, reliance simply on a National Insurance Number to confirm entitlement to work in the UK was not felt to be adequate.

The Government describes the levels of response to the consultation as "disappointing". There were responses from 50 organisations and their comments are summarised in a document that is available at www.ind.homeoffice.gov.uk/file.asp?fileid=1137. It was felt that the proposals could be accommodated by large employers who already have procedures in place, but not by small employers. It did not appear that the existing rules are well understood.

In the light of the comments from the respondents, the Government has decided to proceed with the changes, broadly as originally proposed. The new rules have been announced and employers will be required to comply with them from 1 May 2004, the same date as the EU enlargement occurs and the UK's scheme for the registration of workers from eight of the ten new States takes effect.

The draft guidance, entitled Changes to the law on preventing illegal working: short guidance for United Kingdom employers, is now available on the Home Office website. The final version will be sent to all PAYE employers during April and will be supported by more detailed guidance on the Home Office website.

The new procedures
The following is a summary of the new requirements that will take effect from 1 May 2004. They only apply to employees who are start in a new job from that date onwards. There are three steps to the procedure:

1. All potential employees must be asked to provide, before starting employment,
   • one of the original documents in List 1, or
   • two or the original documents in List 2.
   
   
   
2. Check that the potential employee is the rightful holder of the documents presented, e.g. by checking that
   any photograph is actually of the individual
   • the date of birth is consistent with the individual's appearance
   • the expiry dates have not passed
   • any UK Government stamps or endorsements permit the individual to perform the work on offer
   • if the two documents in List 2 bear different names, a further document is produced that explains the discrepancy.
   
   
   
3. Make a photocopy or a WORM (write once read many) scan of the relevant parts of the documents and keep the copies on file. There must be sufficient evidence to support the employer's right of defence if the Immigration Service finds that an illegal immigrant has been engaged.

If the employer is not satisfied with the documents presented, the individual must not be employed. Therefore, the checks must be made prior to the start of any employment. It is up to the potential employee to demonstrate entitlement to work in the UK.

Employers are not expected to act as immigration officers. If they are in any doubt about the validity of a document, employers can phone 0845 010 6677 for advice.

Avoiding racial discrimination
The majority of people from minority ethnic groups living in the UK are British citizens. The Government has published a code of practice to help employers follow the vetting procedures without discriminating against individuals on the basis of their race. The existing code may be downloaded from www.ind.homeoffice.gov.uk/default.asp?PageId=49. It is to be revised later in the year.

The safest way to avoid discrimination is to apply the three step procedure to all job applicants in exactly the same way. Operating discriminatory recruitment practices can lead to prosecution under the Race Relations Act 1976, for which fines are unlimited. For example, the following practices would be discriminatory:

• asking a black job applicant to produce documents from List 1 or List 2 but not a white applicant
• asking an applicant from abroad who has a National Insurance number to produce a further document from List 2 but not doing the same for someone who appears to be British
• using the new procedures to check that existing employees are entitled to work in the UK, but only doing so for employees from minority ethnic groups
• only performing the Step 2 checks for employees from minority ethnic groups.

Employing nationals from the EEC
Individuals who are nationals of countries in the European Economic Area (EEC), and members of their immediate families, are allowed to enter and work in the UK without restrictions. (See the news item EU enlargement and NICs)

In many cases it will only be necessary for such workers to produce a national passport or national identity card in order to demonstrate their entitlement to work in the UK. However, in the case of workers from the countries that will join the EU on 1 May 2004, with the exception of workers from Cyprus and Malta, employers will be required to check that they have registered under the Workers Registration Scheme. (See separate news item)

Where an employer is considering employing a worker from one of the eight countries that are involved in the Workers Registration Scheme, the following procedure must be followed:

1. The new three-step vetting procedure must be followed first.
   
   
2. Workers who are taken on as employees must be informed, on starting in the new job, that they are required to register immediately with the Home Office. Employers are then required to check within one month of an employee starting work that the employee has, in fact, registered.
   
   
3. Once registered, the employee will be issued with a registration certificate and the employer can make a copy for record purposes.

Note carefully that, employers will be responsible for ensuring that workers from the eight new States register within the first month of employment. If a worker does not register within that time, the employment must be terminated in order to avoid committing a criminal offence, for which the maximum penalty is £5,000.

List 1 documents, of which only one is required
Only one of the following documents is required. If produced, none of the documents in List 2 are required.

• a passport showing that the holder is a British citizen or has a right of abode in the UK
• a national passport or national identity card showing that the holder is a national of an EEC country or Switzerland
• a residence permit issued by the UK to a national from a country in the EEC or Switzerland
• a passport or other document issued by the Home Office which has an endorsement stating that the holder has a current right of residence in the UK as the family member of a national from a country in the EEA or Switzerland
• a passport or other travel document endorsed to show that the holder can stay indefinitely in the UK, or has no time limit on their stay.
• a passport or other travel document endorsed to show that the holder can stay in the UK and that the endorsement allows the holder to do the type of work on offer if the holder does not have a work permit
• an Application Registration Card issued by the Home Office to an asylum seeker stating that the holder is permitted to take employment.

List 2 documents, of which two are required
There are two combinations of documents in List 2. The two documents that are produced as evidence must come from one combination or the other. One document from each list is not permitted. If produced, none of the documents in List 1 are required.

First combination

1. a document giving the person's permanent National Insurance Number and name. This could be a P45, P60, National Insurance card, or a letter from a Government agency.
   
   That document must, in addition, be supported by one of the following documents (b) to (h):
2. a full birth certificate issued in the United Kingdom, which includes the names of the holder's parents
3. a birth certificate issued in the Channel Islands, the Isle of Man or Ireland
4. a certificate of registration or naturalisation stating that the holder is a British citizen
5. a letter issued by the Home Office which indicates that the person named in it can stay indefinitely in the United Kingdom, or has no time limit on their stay
6. an Immigration Status Document issued by the Home Office with an endorsement indicating that the person named in it can stay indefinitely in the UK, or has no time limit on their stay
7. a letter issued by the Home Office which indicates that the person named in it can stay in the UK, and this allows the person to do the type of work on offer
8. an Immigration Status Document issued by the Home Office with an endorsement indicating that the person named in it can stay in the United Kingdom, and this allows the person to do the type of work on offer.

1. a work permit or other approval to take employment that has been issued by Work Permits UK
   That document must, in addition, be supported by one of the following documents (b) or (c):
   
   
2. a passport or other travel document endorsed to show that the holder is able to stay in the UK and can take the work permit employment in question
   
   
3. a letter issued by the Home Office confirming that the person named in it is able to stay in the UK and can take the work permit employment in question.

The descriptions of the documents in List 1 and List 2 are not the statutory wording. Full details of the documents are to be produced in a new Home Office booklet and on the Home Office website.

Documents that are no longer acceptable
The following documents, on the pre-May 2004 list of acceptable documents, are no longer acceptable:

• a Home Office Standard Acknowledgement Letter or Immigration Service Letter (IS96W) which states that an asylum seeker can work in the United Kingdom. An applicant producing such a document should be advised to contact the Home Office to obtain an Application Registration Card
• a letter issued by the Home Office stating the holder is a British citizen
• a passport describing the holder as a British Dependant Territories Citizen which states that the holder has a connection with Gibraltar
• a short birth certificate issued in the UK which does not have details of the holder's parents.

Implications for employers
Prior to 1 May 2004, many employers have not had rigorous procedures to provide themselves with an adequate defense if they take on an illegal immigrant inadvertently. The profile of these critical modified procedures will be raised by the Home Office, especially in the light of the heavy financial penalties that could be imposed, in connection with both the rules for Asylum and Immigration and for race discrimination.

To protect themselves, employers must introduce the three-step vetting procedures - and apply them in every case, even for employees who are clearly British and about whom the employer may have absolutely no doubts. It may even be necessary to reject an otherwise suitable applicant who is obviously entitled to work in the UK but who is unable to produce the necessary documents - at least until the applicant is able to obtain the necessary documents.

It will have to be made clear to prospective employees who are invited for job interviews that they must bring the appropriate documents with them. Whether the documents are checked and photocopied at the time of the interview is for the employer to decide, but that part of the procedure must be completed before the new employee starts work.

Under the new procedures, the focus is moving away from reliance principally on the National Insurance number. British applicants are normally able to produce a document showing their permanent NI number (not temporary NI number), but it must now be supported by another document, likely in many cases to be the applicant's birth certificate. However, many people do not have a full birth certificate showing their parent's names as their parents were issued with the free short certificate when the applicant's birth was registered. It may be necessary, therefore, for a job applicant to obtain a full birth certificate before attending a job interview, the cost of which is around £11.50, or £27.50 for a 'by return' service.

Instead of the two document approach, it will be easier for many British applicants to produce their passport. It is sufficient by itself to satisfy an employer. The UK passport is rapidly turning into a national identity card and is becoming an essential means of identification for obtaining many services. For example, it is one of the key documents that must now be produced in order to open a bank account, following the introduction of The Money Laundering Regulations 2003. If they don't already have one, it may be worthwhile for job applicants to spend £42 on a new passport, viewing it as an investment for the future.

Sources: www.ind.homeoffice.gov.uk/file.asp?fileid=1138
www.ind.homeoffice.gov.uk/default.asp?PageId=1366