New Measures Preventing Illegal Working
 
 
From 29th February 2008, the onus will be on the employer to ensure all potential employees have permission to work in the UK.
 
Employers will need to be aware that if they employ illegal migrant workers they will be liable for a civil penalty of up to £10,000 per illegal worker. A defence against the fine can be put forward by the employer if they can demonstrate that steps have been taken to check the validity of documents belonging to the employee. The employer must:-
 
1. Verify the potential employee is the owner of the documents
2. Check the photograph / date of birth
3. Retain a copy for a period of not less than two years after termination of employment
 
If employers knowingly employ illegal migrant workers they can face a prison sentence of up to two years and also an unlimited fine. Company Directors will be disqualified from forming or managing a company as a result of this offence.
 
If the document is the potential employee’s passport, employers will need to copy the following:-
 
1. Personal details including nationality
2. Photograph
3. Signature
4. Date of expiry
5. Visa or the entitlement to enter/remain in the UK to undertake work.
 
Employers who want to employ a non-EEA national will now be required to apply
for a Sponsorship Licence. An online application form will need to be completed and
a visit will be made from the Home Office to assess whether the employer has a
satisfactory system in place for monitoring migrant employees. The employer will be informed whether a licence will be granted or not.
 
ACTIONS EMPLOYERS NEED TO TAKE TO PREPARE FOR A SPONSORSHIP LICENCE
 
Employers will need to follow the steps outlined below:-
 
1. Collect documentation for the application. For PLC’s, they will need to show evidence of London Stock Exchange numbers and evidence of trading presence in the UK.
 
Private Limited Companies will need to show four types of evidence of trading presence in the UK. This would include employer’s liability insurance, audited accounts, VAT registration, and HMRC registration certificate.

2. Prepare a chart listing of all subsidiaries. 

3. Consider whether the Company will need to apply for a single licence or separate licences for all branches.
 
4. Consider the amount of certificates the Company will need per year, this will give an indication of how many non – European Economic Area (EEA) workers are likely to be employed.
 
5. Expect a visit from the Account Manager with Border and Immigration Agency (BIA). They will check records and office systems. This will enable the Account Manager to assess whether the employer’s internal communications are good to ensure the migrant workers employment with the Company is fully reported to the BIA.
 
SANCTIONS
 
Sanctions will be imposed by the BIA if an employer is found to have failed in their duty as sponsor of migrant workers.
 
The following sanctions may be imposed:-
 
1. Withdrawal of Sponsorship Licence – this will occur if the employer is convicted of an immigration related offence, or may occur if the sponsor does not comply with their duties as a sponsor.
 
2. Downgrading from A – rated Sponsor to B – rated Sponsor – this will occur if the employer has been issued with a civil penalty. The downgrading will mean the BIA will require the employer to follow an action plan to improve their procedure to the satisfaction of the BIA. After a period of three months the employer will either be upgraded to an A rating or they will have their licence withdrawn from them.
 
3. Written Warning for Employing Illegal Workers - this means the employer will attract close attention from the BIA Compliance Officers.

Bill Devey - Honest Employment Law Practice   

 

 

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