How to avoid unwittingly breaking the rules on illegal workers

Yash Dubal provides some tips on ensuring every member of staff has the right to work

Political rhetoric over immigration has been running hot for many years. The issue was one of the driving factors behind the 2016 decision to leave the EU. The refrain: ‘I don’t disagree with people coming here to work, but…’ is still commonly heard. The issue has never gone away. The idea that leaving the EU and weaning businesses off a perceived addiction to cheap labour would lead to investment in innovation and higher wages for native workers, boosting productivity, has been proved a fallacy. The UK is still struggling with a productivity gap, output per worker has not risen, wages in real terms are dropping as the cost of living rises and last year net migration rose to record levels, driven largely by migrants from outside EU countries, who flocked to the UK thanks to its liberal post-Brexit immigration system.

Whatever your thoughts on immigration, business needs people and, when industry does not have the right kind of people domestically to fill roles, it must look elsewhere. Many studies over the years have shown how economies benefit from migration. The government understands this but, because of the gap between the expectations of Brexiteers that migration would come down and the reality that it has risen, it struggles to placate voters.

The answer it has come up with, in part, is to target illegal workers and to be seen as being tough on those who enter the UK and work here illegally. This crackdown has involved a 50 per cent increase in Home Office raids and compliance visits on businesses suspected of employing undocumented workers and a tripling of fines for those found to be doing so.

The onus is firmly on employers, even if they are hoodwinked by fake documents and dishonest declarations. The result for businesses that employ migrant workers is a fearful atmosphere, as there is little leniency for employers that inadvertently employ illegal migrants or forget to do the necessary checks. Fines can reach £60,000 and offenders are named and shamed on a public record.

The commonly held view of an illegal worker is someone who entered the country illegally and who works ‘off the books’ in high worker-churn sectors such as hospitality or retail. This, you may be surprised to learn, is not necessarily the case. An illegal worker may be someone who entered the UK legally but has had their right to work revoked for some reason, perhaps their work visa has expired, or perhaps they entered the UK on a short stay visa and have overstayed.

To stay on the right side of the law, it is up to you as the employer to validate, record and check all the documentation required by the Home Office to ensure that the person being employed has a right to work in the UK and to report the discovery of illegal workers.

Forewarned is forearmed and perhaps the best way to avoid employing someone who does not have the legal right to work is to be aware of the most common mistakes that businesses and recruiters make, which can then lead to trouble. Number one on the list is not doing document checks properly. Checks are required on every employee working for the business. This includes European passport holders, biometric residence permit holders and British citizens and British passport holders. It's paramount to review all necessary identification and right-to-work evidence, without making assumptions based on a candidate's appearance or accent. Disparities in photos or names across documents are often overlooked but can be significant red flags. Documents must also be stored correctly for GDPR compliance.

Number two on the list is relying on copies when checking documents. Original documents should be the gold standard and specific and detailed attention should be paid to security features such as watermarks and holograms to ensure documents are genuine. Physical document checks should be authenticated with copies taken and the copy should be signed and dated.

Next on the list is not keeping an accurate diary to flag up expiry dates and significant events. Overlooking the validity periods on visas or work permits can result in unintentional illegal employment. Time-limited rights to work mean timely periodic re-checks and follow ups are essential. Term dates should be recorded for student visa holders with work rights, regardless of the hours they work.

Not completing an Employer Checking Service check on a current or future hire (where required) is another fairly common error, as is using a third-party recruitment agency to carry out right-to-work checks. When in doubt, seeking guidance from HR or legal professionals is always wise.

Finally, employers should keep up to date with current rules and requirements. The UK's eligibility criteria for rules relating to permission to work on visas can shift. Regular updates on current legislation are essential.

Unfortunately, even those businesses that are not directly involved and are completely innocent can get drawn into bad headlines if their contractors do not follow the rules. In August this year, for example, Sainsbury’s was mentioned in several media, including the BBC, when it was reported that a man who recruited illegal migrants as cleaners in supermarkets had been jailed for six years. He created false identities and falsified bank statements for the workers he used. While the supermarket had nothing to do with his crimes, it was unfortunately dragged into the case. This, sadly, is unavoidable but, with the correct procedures in place, bona fide businesses should have nothing to fear and can defend their reputation, even when under Home Office scrutiny.

Yash Dubal is director at A Y & J Solicitors