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How do I ensure I’m employing migrants legally?

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The issue of immigration to the UK is rarely out of the news these days and it has been brought into even sharper focus by the recent migrant crisis in Calais.

It has prompted the government to launch a number of crackdowns on those people and activities perceived to be fuelling illegal migrant activity.

Immigration minister James Brokenshire announced this week that businesses that employ illegal workers will be hit with “the full force of government machinery”. It’s thought that immigration officers will be carrying out more checks and raids on UK employers.

What are the wider implications for UK businesses?

It’s not just the issue of employing illegal migrants that UK businesses need to worry about here. The immigration minister added that businesses that knowingly employ illegal workers are also “more likely to breach health and safety rules and pay insufficient tax”.

It means that UK employers, particularly those in industries more likely to attract migrant workers, such as those with low-paid and low-skilled roles, are likely to be under greater scrutiny in the coming months.

Such scrutiny is likely to come from HMRC, The Gangmasters’ Licensing Authority, and also the Health and Safety Executive (HSE).

When employing migrant workers, the HSE risk assessment issues which need to be considered include:

  1. Language and basic communication skills
  2. Literacy, numeracy, general health, and relevant work experience
  3. Whether vocational qualifications are compatible with those in Great Britain
  4. Attitudes and assumptions of workers new to work in Great Britain, or of British workers towards them.

What are the penalties for employing migrants illegally?

UK Visas and Immigration, which replaced the UK Borders Agency in 2013, has several different ways of punishing employers who employ migrants illegally, from civil penalties of up to £10,000 per illegal worker and the removal of the right to legitimately employ migrants, through to imprisonment.

Employers have a responsibility to prevent illegal working in the UK by ensuring that their employees have the right to work in the UK.

The law on preventing illegal workers is set out in Section 15-25 of the Immigration, Asylum and Nationality Act 2006 which replaced the previous rules in Section 8 of Asylum and Immigration Act 1996.

What are my duties as an employer?

As outlined above, employers need to pay close attention to relevant employment and regulatory laws, to seek to ensure compliance and mitigate the risk of litigation and prosecution.

Employers’ duties under the 2006 Act are:

  • To prevent illegal working by carrying out document checks to confirm if a person has the right to work in the UK
  • Check and keep copies of original, acceptable documents
  • If a worker has a time limit on their stay, the employer should carry out repeat checks at least once every 12 months
  • If a worker has restrictions on the type of work they can do and the amount of hours that they can work, do not employ them in breach of these restrictions.

If an employer correctly carries out the document checks required then they will have a legal excuse, known as a statutory excuse against payment of a civil penalty, if they are found to be unknowingly employing an illegal worker.

If an employer knowingly employs an illegal worker then this above excuse will not apply and the employer will be committing a criminal offence under Section 21 of the 2006 Act and will face up to two years imprisonment and/or an unlimited fine.

Careful attention needs to be paid at all times by employers when employing migrant workers, and proper assessment of employer duties and responsibilities in employment and regulatory law, at the earliest possible time, should mitigate against the risk and financial cost of litigation and prosecution.

For more information on the employment rules surrounding migrants and carrying out the correct checks on migrant workers, contact Roger Spence, head of employment law at Harrison Drury. For more information on reducing regulatory risk in the workplace, including those risks posed by migration issues, contact David Edwards, head of regulatory and compliance. Both Roger and David can be contacted on 01772 258321.


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