Preventing Illegal Working - New measures include fines and prison sentences

29 November 2007

The Immigration, Asylum and Nationality Act 2006 included powers to introduce new measures to tackle illegal migrant working. The headline change, newly announced by the Border and Immigration Agency (BIA), is the introduction from 29 February 2008 of

a new system of civil penalties for employers who engage illegal migrant workers, with a proposed maximum penalty of up to £10,000 for each illegal worker

a new criminal offence of knowingly using illegal migrant labour, carrying a maximum two-year prison sentence and/or an unlimited fine

a continuing responsibility for employers to check the ongoing entitlement of migrant workers to work in the UK.

To avoid incurring a civil penalty because of taking on an illegal immigrant, employers must provide themselves with a "statutory excuse". To do this they must undertake specified document checks at the point of recruitment and repeat the checks at least once every twelve months for those employees with limited leave to enter or remain in the UK. The newly passed Immigration (Restrictions On Employment) Order 2007 lists the specific documents that must be checked. There are two lists of documents - List A applies at the time of recruitment; List B applies after twelve months have passed, but only in the case of immigrants with limited entitlement to employment in the UK.

The lists make reference to a "Biometric Immigration Document". This is a new identity card that will be issued to all non-EEA immigrants. As well as reducing the potential for forged documents, the card will reduce the need for employers to be familiar with all of the different forms that immigrants might currently present.

The lists, as they will apply from 29 February 2008, are as follows:

LIST A

A passport showing that the holder, or a person named in the passport as the child of the holder, is a British citizen or a citizen of the UK and Colonies having the right of abode in the UK.

A passport or national identity card showing that the holder, or a person named in the passport as the child of the holder, is a national of the European Economic Area (EEA) or Switzerland.

A residence permit, registration certificate or document certifying or indicating permanent residence issued by the Home Office or the Border and Immigration Agency (BIA) to a national of an EEA country or Switzerland.

A permanent residence card issued by the Home Office or the BIA to the family member of a national of an EEA country or Switzerland.

A Biometric Immigration Document issued by the BIA to the holder which indicates that the person named in it is allowed to stay indefinitely in the UK, or has no time limit on their stay in the UK.

A passport or other travel document endorsed to show that the holder is exempt from immigration control, is allowed to stay indefinitely in the UK, has the right of abode in the UK, or has no time limit on their stay in the UK.

An Immigration Status Document issued by the Home Office or the BIA to the holder with an endorsement indicating that the person named in it is allowed to stay indefinitely in the UK or has no time limit on their stay in the UK, when produced in combination with an official document giving the person's permanent NI Number and their name issued by a Government agency or a previous employer.

A full birth certificate issued in the UK which includes the name(s) of at least one of the holder's parents, when produced in combination with an official document giving the person's permanent NI Number and their name issued by a Government agency or a previous employer.

A full adoption certificate issued in the UK which includes the name(s) of at least one of the holder's adoptive parents when produced in combination with an official document giving the person's permanent NI Number and their name issued by a Government agency or a previous employer.

A birth certificate issued in the Channel Islands, the Isle of Man or Ireland, when produced in combination with an official document giving the person's permanent NI Number and their name issued by a Government agency or a previous employer.

An adoption certificate issued in the Channel Islands, the Isle of Man or Ireland, when produced in combination with an official document giving the person's permanent NI Number and their name issued by a Government agency or a previous employer.

A certificate of registration or naturalisation as a British citizen, when produced in combination with an official document giving the person's permanent NI Number and their name issued by a Government agency or a previous employer.

A letter issued by the Home Office or the BIA to the holder which indicates that the person named in it is allowed to stay indefinitely in the UK when produced in combination with an official document giving the person's permanent NI Number and their name issued by a Government agency or a previous employer.

LIST B

A passport or travel document endorsed to show that the holder is allowed to stay in the UK and is allowed to do the type of work in question, provided that it does not require the issue of a work permit.

A Biometric Immigration Document issued by the BIA to the holder which indicates that the person named in it can stay in the UK and is allowed to do the work in question.

A work permit or other approval to take employment issued by the Home Office or the BIA when produced in combination with either a passport or another travel document endorsed to show the holder is allowed to stay in the UK and is allowed to do the work in question, or a letter issued by the Home Office or the BIA to the holder or the employer or prospective employer confirming the same.

A certificate of application issued by the Home Office or the BIA to or for a family member of a national of an EEA country or Switzerland stating that the holder is permitted to take employment which is less than 6 months old when produced in combination with evidence of verification by the BIA Employer Checking Service.

A residence card or document issued by the Home Office or the BIA to a family member of a national of an EEA country or Switzerland.

An Application Registration Card issued by the Home Office or the BIA stating that the holder is permitted to take employment, when produced in combination with evidence of verification by the BIA Employer Checking Service.

An Immigration Status Document issued by the Home Office or the BIA to the holder with an endorsement indicating that the person named in it can stay in the UK, and is allowed to do the type of work in question, when produced in combination with an official document giving the person's permanent NI Number and their name issued by a Government agency or a previous employer.

A letter issued by the Home Office or the BIA to the holder or the employer or prospective employer, which indicates that the person named in it can stay in the UK and is allowed to do the work in question when produced in combination with an official document giving the person's permanent NI Number and their name issued by a Government agency or a previous employer.

The new Order also provides in detail the way in which the documents that have been checked must be recorded for evidential purposes. The relevant documents must be checked before the commencement of employment. The employer may not retain the documents for any longer than is necessary to copy the relevant parts of them. The full procedure is as follows:

the employer takes all reasonable steps to check the validity of the document

the copy or copies are retained securely by the employer for a period of not less than two years after the employment has come to an end

if a document contains a photograph, the employer has satisfied himself that the photograph is of the prospective employee or employee

if a document contains a date of birth, the employer has satisfied himself that the date of birth is consistent with the appearance of the prospective employee or employee

the employer takes all other reasonable steps to check that the prospective employee or employee is the rightful owner of the document

if the document is not a passport or other travel document the employer retains a copy of whole of the document in a format which cannot be subsequently altered

if the document is a passport or other travel document, the following pages of that document are copied in a format which cannot be subsequently altered

the front cover
any page containing the holder's personal details including nationality
any page containing the holder's photograph
any page containing the holder's signature
any page containing the date of expiry
any page containing information indicating the holder has an entitlement to enter or remain in the UK and undertake the work in question.

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