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Wednesday, 28 September 2016

Employing non-EU nationals: staying on the right side of the law

Employing non-EU nationals: staying on the right side of the law

You’ll recall that in July immigration officials arrested dozens of employees working illegally in the UK at Byron, prompting mixed reactions from the national media and the burger chain’s customers.

The company was accused by some of setting a “sting” under the guise of a training event to assemble the 35 workers – from Albania, Egypt, Brazil, and Nepal – in a location where they could be arrested.

The Home Office denied there had been a sting and told the media that Byron had been fully compliant with immigration and asylum law in how it handled the issue. It emerged that although the restaurant chain had performed the correct right-to-work checks on recruits, the Home Office had received intelligence that some documents the employees provided were forged. Once Byron became aware of this, it was knowingly employing illegal workers. Therefore if it had not co-operated with the Home Office requests it would have faced civil penalties of up to £20,000 per employee. For 35 employees this would have amounted to a fine of up to £700,000.

Shortly after the arrests new, tougher rules came into force and it’s now even more essential that employers comply with immigration legislation. Changes include an increase in the maximum prison sentence from 2 to 5 years for employers who are prosecuted. Before, employers could be prosecuted if they knowingly employed someone illegally, but this has now been extended to employers who have reasonable cause to believe they are doing so.

While the Byron raid has attracted much media attention, the reality is that the Home Office is auditing companies every day. Officials have powers to enter and search premises to investigate possible immigration offences, and they use them.

But employers with solid policies and processes in place for checking right-to-work documentation are in a stronger position to defend their case if they’re found to be employing someone illegally. As an employer you aren’t expected to be a forgery expert: unless documentation is obviously fake, you wouldn’t be expected to spot it. As long as you’re aware of your obligations and have the correct evidence on file, it’s unlikely you’ll receive a fine.

How to stay on the right side of the new law

With such tough penalties and compliance visits in place, employers will be pleased to hear that it’s reasonably simple to head off any charges. Three administrative steps can protect your business from liability and criminal prosecution:

• always obtain an original right to work document from the Home Office’s prescribed list before employment starts;
• check the authenticity and validity of the document in the presence of the employee in question; and
• keep a clear electronic and/or paper copy of the checked document with a note of the date of the check and initials of the
  individual who verified the document.

Employers are also responsible for ensuring their employees continue to have the right to work throughout their employment. This means completing follow-up checks on those who have time-limited permission to work in the UK before their status expires.

For more detail, here’s the link to a factsheet from the CIPD on Immigration law changes.  More here from The Human Resource about your legal responsibilities as an employer.