Emma Burrows, employment law specialist at Trowers & Hamlins Solicitors, takes a look at the employment of overseas workers.

The Government has introduced new measures to tackle illegal working. These measures are in addition to existing requirements for the employment of overseas workers, and place more onerous obligation on employers in terms of the checks they must make prior to offering employment.

Not only do employers have to make the requisite preemployment checks, they also have an on-going obligation to ensure that their employment of an overseas worker is not in contravention of statute. The new rules came into force on 1 May.

Criminal Offence
Under Section 8 of the Asylum and Immigration Act 1996 (AIA), it is a criminal offence, punishable by a fine of up to £5,000 per employee, for an employer to employ a person who does not have permission to live and work in the UK. The Home Office has recently suggested that the £5,000 penalty may increase substantially, and a figure of £20,000 has been mentioned.

There is a provision in the Nationality, Immigration and Asylum Act 2002 which requires employers to supply information about employees suspected of committing certain immigration offences, particularly illegal entry and deception. Police officers also have powers to arrest a person suspected of committing an offence under Section 8 of the AIA. These powers which also enable them to search premises with or without a warrant.

Employer’s Defence
Section 8(2) of the AIA provides a statutory defence to the criminal offence of employing a person who does not have permission to live and work in the UK. This applies if the employer can prove that, before the employment began, a document was produced to him which:

• Appeared to relate to the employee;
  
• Appeared to be one of a number of original documents specified; and
  
• The employer either kept the document or made a copy.
  

As of 1 May when the Immigration (Restrictions on Employment) Order 2004 came into force, there are two separate lists of documents to which a Section 8(2) defence will apply. The potential employee must be able to produce documentation under one of the following lists:

List A

It is only necessary for an employer to check one document appearing under this list, as the documents are thought to be secure enough to stand alone. These documents will mainly be passports or national identity cards.

List B

An employer will need to check two documents from the set range which appear in this list. A document containing a National Insurance number will no longer be sufficient evidence to establish the defence without producing another document. Examples of two documents which would be sufficient under the new rules include a document containing the National Insurance number of the person named in the document (e.g. a document issued by a previous employer, the Inland Revenue or the Department for Work and Pensions) and a birth certificate, certificate of registration or nationalisation as a British citizen, or one of a category of immigration status documents issued by the Home Office.

Further information on the documentation required can be found on the Home Office website www.ind.homeoffice.gov.uk.

Treatment of Documents
Prior to 1 May, an employer did not need to check the authenticity of a document provided in support of evidence that the document holder was entitled to work within the UK, as long as the document appeared to relate to the employee. As of 1 May, an employer must take copies of the relevant parts of the document and must satisfy itself that the document appears to relate to the employee. An employer will have to ask the following questions:

• Is there a photo and, if so, is it a photo of the employee?;
  
• Does the document have a date of birth, and is that consistent with the appearance of the employee?;
  
• Does the document have an expiry date which has passed?;
  
• Does the name differ on the two documents provided? If so, the employee must produce a document to explain the difference (such as a marriage or divorce certificate, or a change of name deed); and
  
• Any UK stamps or endorsements must be checked for proof that the employee can work for the employer.
  It is necessary for the documentation to be copied in accordance with the new rules. Where a passport is the evidence produced, the following pages must be photocopied:
  
• Front cover;
  
• Any page containing the holder’s personal details, including nationality, and the holder’s photo and/or signature;
  
• The date of expiry of the passport; and
  
• Information from the document which confirms they are entitled to work, for example, a residence permit and a Home Office endorsement.

All other documentation provided in support of a job application must be copied entirely.

Post-Engagement Discovery
Previously, if an employer properly followed the defence procedure set out above, under Section 8(2), and did not know that they were employing someone illegally, they would not be guilty of committing an offence if they found out subsequently that the person did not have permission to work. The situation has now changed under current Home Office guidance. Although no further checks need to be made after the employment has begun, the employer will no longer have a defence throughout the employment if at some point they became aware that the person was not permitted to do the job in question.

Who Commits the Offence?
Where a Section 8 offence is committed by a body corporate and is proved to have been committed with the consent, or connivance, or is attributable to any neglect on the part of any director, manager, secretary, or other similar official of the body corporate or any person purporting to act in such a capacity, then he/she will be guilty of the offence as well as the body corporate.

As long as an individual commenced work for an employer before Section 8 came into force on 27 January 1997, an employer will not be guilty of a criminal offence if that individual is working illegally. In order for the Act to apply to illegal workers, they will have to be employed under a contract of employment. In the event that the workforce is made up of independent contractors who are all selfemployed, an employer will not be liable for them under the Act, and has no responsibility to enquire into their immigration status.

Practical Guidance

• Ensure that before employing an individual from overseas you check the documentation specified in the Immigration (Restrictions on Employment) Order 2004.
  
• Check that the documentation with which you have been provided is up-to-date and relates to the individual in question.
  
• If at any point you discover that, in spite of the fact that you have followed the necessary checking procedure, the individual you have employed is not permitted to work in the UK, you must take action to dismiss him/her. The dismissal will be a fair one as the individual will not be able to continue working in the position they hold without contravening the statutory requirements set out in the AIA.