Warner News
11/06/2010
Migrants marrying UK citizens must now learn English
Compulsory English language tests will be introduced for non-European migrants.
01/10/2009
Two new policy announcements for Tier 4
New policy for Tier 4 sponsors
Compliance & Risk Management
Our Compliance & Risk Management service was established to help employers keep up to date with changes in immigration law and to prevent them from inadvertently breaking the law.
During just eight months during 2008, the UK Border Agency through the courts handed out over £10 million in fines to employers breaking the law. Not implementing and working within some simples procedures can have several dramatic and negative affects on the business and the employees. These negative affects are many and can include the following:
- the company and officers can be convicted of committing a criminal offence for employing someone knowingly or unknowingly, illegally
- the fine for employing someone illegally is typically up to £10,000; however, depending on the level of non-compliance, and at the discretion of a judge, the fine can be unlimited
- company officers could get a custodial sentence of up to 2 years if it can be proved they knowingly employed someone illegally
- the cost in public relations can be multiplied by the size and position of the company, locally, nationally, or globally
- existing legally employed personnel often feel tainted by association
- other stakeholders such as suppliers, sponsors, clients, shareholders and the local community may take a different view of the company based on the level of the infringement and any subsequent media coverage
- if your business employs skills from overseas and the company loses it licence, you will lose all of the employees who are on a Certificate of Sponsorship, which could prove catastrophic
Companies may take the view that they are unlikely to get caught, but with the major investment being made by the UK Border Agency in developing illegal working tasks teams, the likelihood of getting caught is much higher than it has ever been – and quite rightly too.
Acts and the Law
In this section we could cite lots of immigration Acts, which would not be easy reading; therefore, we won’t do that. What we will do is provide information that is easy to understand, but without jargon where at all possible.
New laws came into effect on 29th February 2008, that passes on a great deal of responsibility to the employer. These laws and penalties can be heavy, but the real price to pay is the name and shame actions being taken by the UK Border Agency for employers who break the law; even inadvertently. In 2007, the Home Office were caught employing illegal immigrants; did anyone go to prison for employing these people illegally or were they even fined?
An employer who employs someone subject to immigration control aged over 16 who 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. In some circumstances a judge can award an unlimited fine.
Illegal working hurts good business, undercuts legal workers and creates illegal profits. It can also puts illegal workers themselves at great risk. However, the new laws, as is the norm, demonize the vast majority of employers and creates significant additional red-tape for the genuine ethical and principled employer.
You Get an Excuse
Section 15 of the 2006 Act (sorry jargon) may enable employers to establish an excuse against liability for payment of a civil penalty for employing an illegal migrant. You can establish the excuse by checking and copying certain original documents before the person starts working for you.
If the person provides a document, or documents that you request and those documents tool genuine to the best of your knowledge, this will establish an excuse for the duration of their employment.
Where you are employing someone from a non-EEA country (including the UK) and you have checked their documents before they began work with you, you must ask for copies of these documents every twelve months to ensure they still retain the right to work in the UK.
Warning!
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 under section 21 of the 2006 Act (sorry again) 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.
Avoiding racial discrimination
It is important to remember that the population of the United Kingdom is ethnically diverse. Many people from ethnic minorities in this country are British citizens and many non-British citizens from black and minority ethnic communities are entitled to work here. Therefore, it must not be assumed that someone from an ethnic minority is an immigrant, or that someone born abroad is not entitled to work in the United Kingdom.
Employers who refuse to consider anyone who looks or sounds foreign are likely to be unlawfully discriminating on racial grounds. If document checks are carried out only for prospective employees who by their appearance or accent seem not to be British, this too may constitute unlawful racial discrimination. Where complaints of racial discrimination are upheld by a Tribunal, employers can be ordered to pay compensation for which there is no upper limit.
Employers have a legal duty under current race relations legislation to avoid unlawfully discriminating on racial grounds and are therefore advised to undertake document checks on every prospective employee. The best way for employers to make sure that they do not discriminate is to treat all job applicants in the same way at each stage of their recruitment process.
Another Warning!
If you knowingly or unknowingly operate discriminatory recruitment processes, you could face prosecution under race relations legislation and an unlimited fine if you are found guilty.
Employing European Economic Area nationals
Employers should ask all EEA nationals to confirm their nationality by producing a specified document. Additionally, nationals of Bulgaria, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Romania, Slovakia and Slovenia may need to be registered or authorised to work.
Under the Accession (Immigration and Worker Registration) Regulations 2004, an employer can be fined a maximum of £5,000 per illegal worker if they continue to employ an unregistered non-exempt A8 worker after one month and have not retained a copy of their Home Office application form and do not receive a certificate of registration. An employer can also be fined for continuing to employ an A8 worker if they have been notified by the Home Office that their application has been refused.
Under the Accession (Immigration and Worker Authorisation) Regulations 2006, an employer can be fined a maximum of £5,000 per illegal worker for employing a non-exempt Bulgarian or Romanian who does not have permission to undertake the employment in question from 1 January 2007.
Risk Management
The risk should be taken out of business wherever possible. We work with the employer to drive out the risk using minimum processes to ensure full compliance without the need for your employees to be experts.
Speak to our experts today.