Check the paperwork

The incident in early July that led to dozens of Byron Hamburgers’ workers around London being arrested by immigration officials has not only engendered an upswell of public opprobrium and media backlash, but has also cast stark light on a much wider and sensitive issue: that of illegal working.

The dangers of unknowingly employing illegal workers is a serious issue for many sectors, and not just for purveyors of reasonably priced burgers and chips.

In January this year, more than 250 people were arrested during the first phase of an ongoing national campaign to tackle illegal working in the construction industry.

“Operation Magnify” began in October 2015 as a drive by Home Office division Immigration Enforcement to stamp out illegal working by targeting specific “risk” industries. The first phase of this initiative saw immigration officers conduct 69 enforcement visits to businesses, which resulted in the arrest of 257 individuals at building sites and residential addresses. Immigration Enforcement also issued referral notices to nine businesses warning that they may be liable for financial penalties of up to £20,000 per illegal worker arrested – not an insignificant sum.

The threat of raids is, therefore, clearly a real possibility. No doubt this is spooking a fair few employers and the financial penalties that the government is prepared to levy are likely to give pause for thought. Simply put, the construction sector simply cannot afford to be lackadaisical in its approach to illegal workers and to guaranteeing full compliance with Home Office regulation.

Ensuring compliance is not an impossible task. The first step is to ensure detailed checks of all key employee documentation. This involves physically checking employees’ original documents in the presence of the holder before the start of their first working day and then ensuring that clear, legible copies of the documents are made and a clear record of the date on which the check is made is kept.

The threat of raids is a real possibility. No doubt this is spooking a fair few employers

These copies must then be held onto securely for the entire term of the person’s employment, as well as a further two years after their employment ends. The Home Office has provided guidance on which documents meet the requirements and on how to carry out these checks.

To summarise, there are two rosters of documents known as List A and List B. Individuals with the right to work in the UK indefinitely will be able to produce documents from the first of these, which would include a UK or European Economic Area passport.

However, workers who may only be allowed to stay in the UK for a limited time period need to be able to produce documents from the second roster. They must also include a current passport or travel document endorsed to show their ability to stay in the UK and, crucially, if they have permission to carry out the type of work necessary for the construction sector. Even then, the employer must check the documents again before the individual’s time-limited leave expires.

This is all based on the assumption that the documents in question are all actually legitimate. It is the responsibility of the employer in the first instance to spot any forgeries and, therefore, they must still check that documents are genuine.

If it transpires that an organisation is employing an illegal worker, carrying out a compliant right to work check provides a statutory defence against illegal working and could lead to the waiver of closure notices.

For employers sponsoring Tier 2 workers, the Home Office takes a greater direct role. It will often assess whether a company’s compliance breaches indicate a systematic failing rather than being the result of isolated mistakes. If the Home Office finds that the issue is simply a one-off error, instead of revoking a sponsorship licence, it may offer support in the form of an action plan to give the company an opportunity to get its affairs in order.

Where a company is generally compliant, it may be worth the Home Office adopting an even more collaborative process in order to engender increased and continued compliance that will eventually require minimal input from the government.

In the meantime, the construction sector remains relatively high risk. The nature of construction work means that the industry can be particularly open to the risk of illegal employment, due to historical skill shortages in the UK, a reliance on transient labour and forged identity documents being used to gain access to work.

However, this still does not provide an excuse to employers who will need to maintain a strong system of obtaining, checking and copying documentation to ensure full compliance.

Natasha Hotson is an associate in the immigration team at the law firm Lewis Silkin