The new illegal working offence created by section 34 of the Immigration Act 2016 came into force on 12 July 2016. You can be imprisoned for up to five years if convicted of this offence. There may also be a civil penalty of up to £20,000.
Section 35 of the Immigration Act 2016 is now also force on the same day. Section 35 extends the existing criminal offence of knowingly employing an illegal migrant to the situation where an employer has a reasonable cause to believe that a person is an illegal worker.
The government has published guidance to take into account the new offence. This features details on how to carry out right-to-work checks and includes a factsheet on illegal working.
How to protect yourself when employing new staff
To protect yourself from committing an offence, before employing a person you must ensure they are legally allowed to do the work in question for you. This is done by checking documentation which is deemed acceptable for showing permission to work. There are three key steps which need to be taken when carrying out a right-to-work check:
1. Obtain the person’s original documents
2. Check them in the presence of the holder
3. Make and keep a copy of the documents and make a note of the date of the check
The kind of documents which are acceptable for showing permission to work include a British passport (or a passport or national identity card showing the holder is a national of an EEA country or Switzerland). Documents issued by the Home Office entitling the holder to reside in this country are also acceptable.
A full list of acceptable documents, as well as guidance on to how to check that they are valid, can be found in the Employer’s Guide to Right Work Checks published by the Home Office.
In some circumstances you may need to verify the right-to-work with the Home Office (for example, if the person has an outstanding application with the Home Office, or is appealing against a Home Office decision). Further details are set out in the guide mentioned above.
The effect of Brexit
The implications of Brexit may mean that the government will need to look again at the question of right-to-work checks – especially if freedom of movement is to be restricted. However, for now, employers would be well advised to ensure that they are familiar with the requirements of the illegal working legislation and ensure that right-to-work checks are carried out for every new employee.