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How to check foreign workers pre-employment

Stories of officers arresting people who have entered the country illegally, who have overstayed their visas or who might have an immigration application which does not entitle them to work are all too common. What many still do not realise is that it is a criminal offence for employers to employ foreign nationals that do not have a right to work in the UK. Written by Emma Brooksbank and Hesham Shoeb – immigration solicitors at Simpson Millar.
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Stories of officers arresting people who have entered the country illegally, who have overstayed their visas or who might have an immigration application which does not entitle them to work are all too common. What many still do not realise is that it is a criminal offence for employers to employ foreign nationals that do not have a right to work in the UK. Written by Emma Brooksbank and Hesham Shoeb – immigration solicitors at Simpson Millar.

The punishment is up to £20,000 per illegal worker, a possible criminal conviction and imprisonment for up to 5 years. But when it comes to making the required pre-employment checks and maintaining a system for monitoring foreign workers, there are a number of Dos and Don’ts.

The key initially is to ensure that the person you wish to offer a job to has the right to work in the UK, and to carry out the work you are offering. The documents you have to check will depend on a number of factors such as the employee’s nationality, what kind of visa they have and the period you wish to employ them for.

When it comes to employing foreign workers, copies of documents are never acceptable. So to begin with, you must see an original document that proves that a prospective employee has the right to work in the UK. This can be a passport, a Permanent Residence Card issued by the Home Office, a current Biometric Immigration Document (Biometric Residence Permit), full birth or adoption certificate issued in the UK and so on.

The next step, and one which can easily be missed, is to verify that the documents provided by the candidate or employee are actually genuine. No one is expected to be counterfeit experts, but everyone should make an effort to check that the photographs and dates of birth are consistent across all documents; that no relevant expiry dates have passed; and that the documents have not been obviously tampered with. You also need to check whether there are any restrictions on what work can be done, or the number of hours the candidate is allowed to work each week. Biometric Residence Permits will confirm whether or not the individual is permitted to work, and whether any restrictions apply.

Students, for example, may have the right to work, but may be restricted to a working a limited number of hours per week. Sponsored workers may be restricted to working only for one particular employer and in a particular job role. Any restrictions on the right to work will be stated on the worker’s Biometric Residence Permit.

When you have reviewed the relevant document and are happy that they are valid, make a hard copy in a format that cannot be altered. In practical terms, it is essential that employers retain photocopies, as well as scanned pdf copies of every page of an employee’s passport and both sides of a prospective employee’s Biometric Residence Card.

Don’t just copy the first page of a passport but make sure every page that holds valid information is copied and saved, such as the holder’s nationality, date of birth, signature, picture and any page containing information which might specifically indicate that the person is entitled to enter, work and remain in the UK. The employer has to keep these copies for at least two years after the period of employment has ended.

Once the initial exercise is over, we often see that employers forget to implement a record keeping system to keep these checks up to date. Sadly, doing the initial check well and then missing the date when a visa expired exposes the employer to the same penalties as those who never did anything in the first place. For example, it is vital to make a note and set a reminder of when a passport and the permission to work visa expires, at which point the new passport and/or new visa must be checked and a new copy must be made.

A word of caution to employers reading this and are just about to single out employees with a distinct ethnic appearance for additional checks; you could risk being accused of discrimination. Never make assumptions about whether someone may or may not have the right to work in the UK – regardless of how long they may have lived here or what their accent sounds like.

If you haven’t got one already, put in place a process for checking the relevant documents of all future employees at the recruitment stage. It is important to remember that these checks must be completed before the employee starts work. It is as simple as stating in job adverts, that everyone are required to provide originals of the documents mentioned above, and to prove that they have the right to work in the UK. With a few simple precautions in place, employers can protect themselves from incurring a hefty penalty.

www.simpsonmillar.co.uk

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