Walk on eggshells

With employers trying to overcome the skills shortage by taking on workers from Eastern Europe, how can firms avoid falling foul of immigration law?

After eight Eastern European countries joined the European Union in 2004, some 447,000 workers have joined the UK building industry from those states – a far cry from the government’s estimate of 13,000 a year! Speculation had it that this trend would continue if Bulgaria and Romania were admitted to the EU. Now that they will be, in January, the government has decided to restrict workers from those countries. Even so, employers, tread carefully.

Under section 8 of the Immigration and Asylum Act 1996, employers face a £5,000 maximum fine per illegal worker, a penalty that also applies to personnel with responsibility for recruitment. But the bad publicity and inconvenience caused by an employer having illegal workers deported can be just as costly. How should employers stay out of trouble?

An employer needs to see evidence of a potential employee’s legal right to work in the UK, even if it seems obvious that they are British. Failure to do so could lead to a race discrimination claim and, if that is successful, unlimited compensation.

Potential employees should show original versions of one of the documents listed in the Home Office’s List 1 or two documents in the combinations set out in List 2. These lists are available at the Home Office website or through the employer’s helpline (0845 010 6677).

To ensure that potential employees are the rightful holders of documents, employers must check:

• Photographs and dates of birth are consistent with the appearances of the potential employees.
• Expiry dates.
• Government stamps or endorsements to ensure that the potential employees are not prevented from doing the work required.
• That inconsistencies can be explained. For example, if a potential worker presents two documents from List 2 that show different names, they must also provide a third document that explains why.

Keep and copy documents for the duration of the employment and for at least three years after.

Worker registration scheme

Workers from the eight new EU members must register under the Home Office’s Worker Registration Scheme within a month of starting work, but employers should also:

• Advise the workers to register and give them a letter confirming the job start date.
• Retain a copy of an individual’s completed application form before it is sent to the Home Office.
• Copy and keep the registration certificate. Diarise to follow this up.

An employer may be acting criminally if an individual does not apply for a certificate within a month of starting work or it continues to employ a worker after the Home Office refuses an application. Once the individual has been legally working in the UK for 12 months they no longer need to register.

Future changes

When Romania and Bulgaria join the EU their nationals will face restrictions tighter than in the Worker Registration Scheme. The low-skilled will have to get permission under a quota scheme, and skilled workers will have to get a work permit or qualify under the Highly Skilled Migrant programme. The self-employed will be able to work in the UK without restriction, but beware. A worker who labels himself a contractor may in reality be an employee and so need permission.

Further changes are afoot. The Immigration, Asylum and Nationality Act 2006, expected to be fully implemented in 2008, will replace section 8 of the Immigration and Asylum Act 1996 with a criminal offence of employing a person in the knowledge that they lack legal entitlement to work in the UK. The maximum penalty will be two years’ imprisonment or a fine or both. Employers will also face new civil penalties under which the fine will be cut to £2,000 per illegal worker, but it is more likely to be enforced. Employers will also have to be more strict in their checking of documents.

It seems that the immigration legal minefield will not get any easier. Employers, watch this space!