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A Guide To Civil Penalties For Employing Illegal Foreign Workers

A Guide To Civil Penalties For Employing Illegal Foreign Workers

As of 29 February 2008 Companies employing non-UK citizens will need to take a more pro-active role in preventing illegal employment.

A company's duty to check a prospective employee's eligibility to work in the UK will not cease after the initial check is performed. Companies will have to perform checks for the entire period of the migrant's employment. There will be two separate lists from which a company can perform an identity check.

An identity check performed by a document from List A is called a Full Identity Check. One document from List A is sufficient for the identity check. If a Full Check is performed then additional checks are not needed on that employee.

An identity check performed by a document from List B is called a Partial Identity Check. For a successful Partial Check, the prospective employee must produce two documents from the list.

Partial checks will require employers to conduct identity checks at least annually. It may be advisable for the employer to do the check more often. Employers will have to keep updated contact details of their employees. This includes: address, home phone number, mobile phone number and possibly even email addresses.

Employees will have to obtain Biometric Identity Cards. If the employee does not possess a biometric identity card within the required time period, the employee is not entitled to work in the UK.

Failure to do so will result in civil penalties of up to £10,000 per employee and possibly imprisonment of up to two years. However, employers will be able to reduce the civil penalties in some situations. Some of the factors that will be considered to reduce the fine are:

  1. the type of check performed;
  2. number of previous offences;
  3. cooperation with the BIA in any investigation; and
  4. number of illegal employees reported.

Employers will have a duty to report to the Home Office any suspicious activity by the employee that may violate immigration law related to employment. Employer must keep a record of any changes in the migrant worker's immigration status.

Take the case of an employee who was originally here under Tier 2 but has changed his status and now has a visa under Tier 1. The employer should make a note of this as soon as the employer learns of this change.

All foreign nationals will be required to have a biometric identity card. Foreign nationals will be required to obtain a card within one month of arriving in the UK. Failure to do so will make the person ineligible to work.

If the employee should not have this card within the requisite time period, the employer should note this and possibly even inform the Home Office of the employee's failure to obtain the identity card.

Please contact our offices at 0370 1500 100 to discuss your matter with a member of the Immigration team.