COMPLIANCE - EMPLOYING FOREIGN NATIONALS

OFFENCE
All UK Employers are legally required to comply with the Immigration, Asylum and Nationality Act 2006 (“the act”) which states that it is illegal to employ anyone that does not have current and valid documentation to prove that he or she can work in the United Kingdom.

Since February 2008 employers failing to comply with the Act, could be imposed a penalty.

Where the offence is committed by a company, but with the knowledge of an employee (for instance the manager who recruited the individual), the employee may also be held personally liable and be imposed a penalty.

Employers have a duty to check that all their employees have the right to work in the UK. This applies to all employees whether they are on a fixed term/temporary contract or returning after a sabbatical or maternity leave. Employers must check the documentation of any overseas employees who do not have indefinite leave to remain in the UK on a yearly basis. Employers should also satisfy themselves that any providing services to them as a consultant or contractor has the right to work in the UK.

Employers MUST carry out checks before the employee starts work. The employer must satisfied himself that the employee is allowed to work in the UK by checking original documents (please see below Annex A and B), taking a copy of the relevant items and keeping records of them on the employee’s file.

Employers have the responsibility to ensure that the employee’s leave/permission to reside and work in the UK remains valid whilst employed.

Should the Border and Immigration Agency find overseas workers working in the UK without the proper authorisation, the employer will only be able to avoid being imposed a penalty if he can establish a statutory excuse (e.g. a defence).

DEFENCE (Statutory Excuse)
The statutory excuse should be established if the employer can show that he obtained the employee’s original documents before the employee started his employment, checked that the documents were valid and genuine and kept a copy of these on file

The documents to be checked by employers are set out as List A and List B below..

For identity cards, passports and travel documents, a copy should be taken of the document’s front cover; any page containing the employee’s personal details including nationality, his photograph, date of birth and / or signature; and biometric details; the expiry date of the document; and any relevant UK immigration endorsements (e.g. visa / residence permit).

Other documents should be copied entirely.

If the employer has taken reasonable steps to check the validity of a document or documents from List A, the statutory excuse will be established for the duration of the employment.

If an employee produces a document and various documents from List B, the employer must check the validity of these documents every 12 months.

If the employer is unsure he can use the Employer Checking Service

List A

1. 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 United Kingdom and Colonies having the right of abode in the United Kingdom.
2. 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 or Switzerland.
3. A residence permit, registration certificate or document certifying or indicating permanent residence issued by the Home Office or the Border and Immigration Agency to a national of a European Economic Area country or Switzerland.
4. A permanent residence card issued by the Home Office or the Border and Immigration Agency to the family member of a national of a European Economic Area country or Switzerland.
5. A Biometric Immigration Document issued by the Border and Immigration Agency to the holder which indicates that the person named in it is allowed to stay indefinitely in the United Kingdom, or has no time limit on their stay in the United Kingdom.
6. A passport or other travel document endorsed to show that the holder is exempt from immigration control, is allowed to stay indefinitely in the United Kingdom, has the right of abode in the United Kingdom, or has no time limit on their stay in the United Kingdom.
7. An Immigration Status Document issued by the Home Office or the Border and Immigration Agency to the holder with an endorsement indicating that the person named in it is allowed to stay indefinitely in the United Kingdom or has no time limit on their stay in the United Kingdom, when produced in combination with an official document giving the person's permanent National Insurance Number and their name issued by a Government agency or a previous employer.
8. A full birth certificate issued in the United Kingdom 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 National Insurance Number and their name issued by a Government agency or a previous employer.
9. A full adoption certificate issued in the United Kingdom 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 National Insurance Number and their name issued by a Government agency or a previous employer.
10. 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 National Insurance Number and their name issued by a Government agency or a previous employer.
11. 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 National Insurance Number and their name issued by a Government agency or a previous employer.
12. A certificate of registration or naturalisation as a British citizen, when produced in combination with an official document giving the person's permanent National Insurance Number and their name issued by a Government agency or a previous employer.
13. A letter issued by the Home Office or the Border and Immigration Agency to the holder which indicates that the person named in it is allowed to stay indefinitely in the United Kingdom when produced in combination with an official document giving the person's permanent National Insurance Number and their name issued by a Government agency or a previous employer.

List B

1. A passport or travel document endorsed to show that the holder is allowed to stay in the United Kingdom and is allowed to do the type of work in question, provided that it does not require the issue of a work permit.
2. A Biometric Immigration Document issued by the Border and Immigration Agency to the holder which indicates that the person named in it can stay in the United Kingdom and is allowed to do the work in question.
3. A work permit or other approval to take employment issued by the Home Office or the Border and Immigration Agency when produced in combination with either a passport or another travel document endorsed to show the holder is allowed to stay in the United Kingdom and is allowed to do the work in question, or a letter issued by the Home Office or the Border and Immigration Agency to the holder or the employer or prospective employer confirming the same.
4. A certificate of application issued by the Home Office or the Border and Immigration Agency to or for a family member of a national of a European Economic Area 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 Border and Immigration Agency Employer Checking Service.
5. A residence card or document issued by the Home Office or the Border and Immigration Agency to a family member of a national of a European Economic Area country or Switzerland.
6. An Application Registration Card issued by the Home Office or the Border and Immigration Agency stating that the holder is permitted to take employment, when produced in combination with evidence of verification by the Border and Immigration Agency Employer Checking Service.
7. An Immigration Status Document issued by the Home Office or the Border and Immigration Agency to the holder with an endorsement indicating that the person named in it can stay in the United Kingdom, and is allowed to do the type of work in question, when produced in combination with an official document giving the person's permanent National Insurance Number and their name issued by a Government agency or a previous employer.
8. A letter issued by the Home Office or the Border and Immigration Agency to the holder or the employer or prospective employer, which indicates that the person named in it can stay in the United Kingdom and is allowed to do the work in question when produced in combination with an official document giving the person's permanent National Insurance Number and their name issued by a Government agency or a previous employer.