Auntie looks at what steps you should take when employing foreign nationals

Dear Auntie

Senior HR Manager

Dear Ms Crimination

With immigration problems, prevention is better than cure. Here are three key reasons why you should put processes in place to get it right from the outset:

1. Employ foreign nationals who do not have the correct immigration permission to do their jobs, and you face civil and criminal penalties. It is not just about illegal immigrants – for example, a person may be in the UK lawfully as a student, but subject to restrictions on hours of work. Getting your employer into trouble is bad enough. As HR manager, some penalties could be imposed directly on you.
    
2. The law provides a statutory excuse against a penalty if you have correctly checked the immigration status of every employee in line with published, prescribed criteria. This means checking everyone before employment starts – and at least annually thereafter for employees with time-limited immigration status.
    
3. If you carry out checks incompletely, incorrectly or unevenly, you can create rather than solve issues. Your statutory excuse/defence may not work. To make matters worse, you may be acting in a discriminatory manner, or setting yourself up for future employee relations or business continuity issues if you find you have a “live” situation to deal with – and it seems that you have.

Oh dear! It’s just about passports and stamps, isn’t it? How difficult can it be?

You’d be surprised, based on what we see on a daily basis. Not everybody has a passport, and not every stamp is genuine. You can make it easier by following the law and procedure, and taking prompt legal advice in cases of difficulty.

Your starting point is a proper system for checking the validity of status based on the three-step inspection, copying and retention of evidence of the right to work in line with best practice.

You have not carried out a compliant check or re-check for the employee about whom the allegation has been made. Your first check was too late (i.e after employment started) and subsequent ones have not happened at all. It is time to upgrade your systems.

Where can I find the law and procedure on illegal working and its prevention?

The main laws governing illegal working derive from primary legislation which prescribes guidance on compliant process through regulations and published Government guidelines for employers.

The Asylum and Immigration Act 1996 as amended sets out a strict liability criminal penalty regime for illegal employment which commenced between 27 January 1997 and 28 February 2008. It also prescribes a statutory defence based on compliant inspection, copying and retention of evidence of the right to work. Penalties consist of unlimited fines and, for severe and deliberate cases, imprisonment.

The Immigration, Nationality and Asylum Act 2006 sets out a dual civil and criminal penalty regime for employment which commenced since 29 February 2008. It also prescribes a statutory excuse based on compliant inspection, copying and retention of evidence of the right to work. The civil penalty consists of a fine up to £10,000 per illegal worker on a sliding scale, with reductions for partial compliance and cooperation.

The Accession (Immigration and Worker Authorisation) Regulations 2006 impose criminal penalties – generally, a fine of £5,000 – on employers who employ unauthorised, non-exempt EU nationals from Bulgaria or Romania. Other EU nationals, including those who joined the “new” Europe in 2004, are now allowed to work without restriction.

A Code of Practice on avoiding immigration compliance-related discrimination in recruitment was first introduced by the Immigration and Asylum Act 1999. It has subsequently been revised. The Code reiterates important principles of discrimination law, and makes clear the importance of avoiding assumptions about people based on actual or perceived characteristics, so that every employee is treated in the same way.  Breach of the code is admissible in the employment tribunals.

You can find detailed information including the Government’s summary and full (comprehensive) guidance for employers on the prevention of illegal working, along with the Code of Practice on avoiding discrimination, on the UK Border Agency website. These documents should be your primary resource for getting process right. The guidance has recently been revised and clarified. You will find a very useful checklist at the back of the summary guidance.

See:  http://www.ukba.homeoffice.gov.uk/sitecontent/documents/employersandsponsors/preventingillegalworking

So I have missed a few basics! What should I do to put the house in order?

It is never too late to implement best practice. Doing so will stand you in good stead if problems come to light later on. You should:

• Implement across-the-board checks for new employees before they start work, in accordance with the UKBA guidance
• Identify those employees subject to time-limited immigration status, and ensure they are re-checked at least annually
• Ensure your immigration compliance processes are robust, timely, confidential and non-discriminatory, in accordance with the Code of practice, and that all staff who carry them out are properly trained
• Consider – carefully – whether an audit of all existing employees will help you to identify any other hidden problems so that you can deal with them. You know your employees. Are there likely to be objections? Are you willing to risk flagging up that this should have been addressed earlier? You could legitimately present this as a pre-merger housekeeping exercise.
• Investigate the specific allegation about your “illegal” employee

What about the specific allegation?

By failing to inspect documents before this employee started work, you missed out on the statutory excuse should he turn out to be illegal. Your HR instincts correctly homed in on the sensitivity. You don’t want an illegal worker on your hands – but nor do you want an employment claim. You would be in a much better position now had your compliance been up to scratch.

First, revisit the passport copy you have on file and benchmark it against the UKBA guidance. Does it still appear to be in order?

If you still have reasonable concerns about the immigration status, call the employee to a confidential HR meeting and explain what the concerns are. Make clear that you are just investigating, no conclusion has been reached and he will be given reasonable opportunity to disprove the allegation. Agree a reasonable timeframe within which to produce evidence in line with the UKBA guidance, and make a note of everything that is said.

Depending on what emerges, you may want to take legal advice about both the employment and immigration aspects. If you conclude there is substance in the allegations, you should consider reporting the matter to UKBA and taking steps to terminate the employment fairly and lawfully. Important note – licensed sponsors under the Points Based System have a duty under the terms of their licence to investigate and report concerns about the immigration status of sponsored migrants promptly.

Anything else I should think about?

You indicate that your firm is not a licensed sponsor under the Points Based System.  Your merged business will probably need a sponsor licence to transfer staff and make key lateral hires. To obtain and keep your licence, you will need to demonstrate good immigration compliance and robust HR systems which capture data and flag up critical dates and actions. It is definitely time to address some issues.