e-Bulletins
Preventing Illegal Working: Guidance Update
The law on migrant working significantly changed in February 2008 following the introduction of new legislation. This made it harder for illegal workers to obtain work and remain in the UK and also increased the sanctions against companies who engaged illegal workers.
Over two years on, the UK Border Agency ("UKBA") has updated its helpful comprehensive guidance on migrant working which can be found at:
The guidance provides the following key reminders:
- You must check that each applicant and your existing workers have the right to work in the UK.
- You must check certain original documents (e.g. passport) and retain copies of these throughout the engagement and for a further two years after the individual stops working for you.
- You must take all reasonable steps to ensure that the documents are genuine and that the individual is the person named on the document.
- To avoid claims of discrimination, all applicants and workers should be asked to produce the necessary documentation.
- If you undertake checks and are not satisfied that the individual is eligible to work in the UK, the onus will be on the individual to prove their eligibility.
- If you fail to conduct appropriate checks, you may be liable to pay a civil penalty of up to £10,000 per illegal worker.
- If an individual who is offered work has a time limit on their stay in the UK, you must also carry out repeat checks on their documents, usually through the Employee Checking Service.
- If the individual is no longer permitted to work in the UK, you will become liable for a civil penalty and will be committing a criminal offence of knowingly employing an illegal worker. In the worst case, this could lead to you being imprisoned for up to two years and given an unlimited fine.
Migrant workers are the mainstay of the hospitality sector and can often make up the majority of the workforce. This can place a high administrative burden on you. However, as the guidance shows, the penalties for failing to undertake the correct checks and/or engaging illegal workers can be severe. It is therefore essential that you undertake rigorous pre-engagement checks; diarise reminders to speak to individuals at least 3 months prior to their to right to work in the UK expiring; and follow a fair termination process in the event that an individual is unable to satisfy you that they have a right to work in the UK or have a pending application which entitles them to continue working.