Managing Migrant Workers

A couple of weeks ago, a client had a visit from the UK Borders Agency. Fortunately they had done their checks when recruiting employees and the visit passed off without incident.

The Immigration, Asylum and Nationality Act 2006 came into force in February 2008. As an employer, you may be presented with a document, or documents, from one of two lists. Documents provided from List A establish that the person has an ongoing entitlement to work in the UK; documents from List B indicate that the applicant or employee has restrictions on their entitlement to be in the UK.

You have to check the original document and take a copy to show due diligence. An employer who employs someone subject to immigration control who is aged over 16 and is not entitled to undertake the work in question will be liable to pay a civil penalty of up to £10,000 per illegal worker. You can appeal against the fine if you wish, but you still have to pay it – and will be prosecuted if you don’t. If you know that you are employing a person who is not permitted to work, then you will not be entitled to the excuse.

In addition, you could be prosecuted for the offence of knowingly employing an illegal worker. Conviction under this offence will carry the potential of an unlimited fine and/or prison sentence of up to two years. The arrangements for establishing the excuse only applies to employees who started working for you on or after 29 February 2008.

You will still be liable for prosecution under the earlier legislation in cases where you employed illegal migrants between 27 January 1997 and 28 February 2008 and did not establish the statutory defence at the point of recruitment. Equally, if you established a statutory defence for employees taken on before 29 February 2008, this will be retained for the duration of that person’s employment.

Note that if you employed a person before May 2004, you should have carried out checks set out in the 1996 legislation, which are less stringent and include things like National Insurance numbers. However, if you have carried out an audit of employees, including those employed before May 2004, the new rules will apply. Checks need to be carried out on everyone. Many people from minority ethnic groups who live in the UK are British citizens.

The best way to make sure that you do not discriminate in your recruitment practices is to treat all job applicants in the same way. If you discriminate against someone on racial grounds, then this may be used as evidence against you under race relations legislation before an employment tribunal. You should not employ anyone simply on the basis of his claim to be British, or if you think he appears to be British.

Note that there is no upper limit for compensation in cases of unlawful discrimination. Nationals from European Economic Area (EEA) countries and Switzerland can enter the UK without any restrictions. Note that not all EEA nationals can work in the UK without restrictions, so you should not employ any individual on the basis of his claim to be a national from an EEA country without further checks.

There is a five tier points based system for migrants who are not from the European Union and who wish to come to the UK to work, study and train. Tiers 1, 2, 4 and 5 are now open. Tier 3 is currently suspended. For each tier, applicants need to score enough points to gain entry clearance or leave to remain in the United Kingdom.

The awarding of points is based on objective and transparent criteria. The UKBA will also look at whether the applicant is likely to comply with his immigration requirements in the United Kingdom. For more information about employing migrant workers give us a call.

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