New Immigration Act - Are you compliant?

A new Immigration Act came into force on 12 July 2016, which brings some key changes for employers. The Act was passed prior to the decision to leave the EU so there are some changes to current rules that we need to make you aware of before any further changes to immigration laws are made as a result of Brexit.

The previous threshold for the Home Office to bring a criminal sanction against an employer was that they ‘knowingly’ employed an illegal worker. This has been lowered to “reasonable cause to believe that person is an illegal worker”. Alongside this the prison term has been extended to five years. New powers to search premises, seize documents and/or devices to assist with determining a civil penalty have also been brought into effect in this new Act.

The Home Office, in a recent presentation to HR professionals, said that it applies penalties daily in the East Midlands alone for non-compliance with the Immigration Act. The recent publicity regarding Byron’s Hamburgers is further evidence that the Home Office is serious about tackling illegal workers.

One of the key issues for employers is to check visa expiry dates. The expiry of a visa means that the individual no longer has the right to work in the UK, unless an application has been made to the Home Office for an extension. If the individual has made an application for an extension, or for the right to remain indefinitely, the employer will be lawfully allowed to keep that person in employment while their application is being processed as long as an ‘Employer Checking Service’ check has been conducted by the employer to verify that the application has been made.

Also, what if you are employing a dependant? If you employ someone who is here because they are a dependant of someone else who has the right to work in the UK you need to be aware of when their circumstances change. If for example, that employee becomes divorced from the person who has the right to work here, they may no longer have the right to work in the UK. It is recommended that you train your line managers on the importance of this new piece of legislation so that they are aware of when circumstances change and can make sure the right checks are carried out. We can help you with this.

How to properly check someone has the right to work in the UK

When checking that a new employee has the right to work in the UK (something you should do for all applicants) there are three steps that you need to carry out to ensure you have conducted your checks properly to protect you.

Obtain – the applicant’s original identity documentation that is listed in the Home Office guidance. There are two lists – Group A and Group B. You need to ensure that the documents you obtain are in accordance with either of the lists.

Check – that the documents are valid – with the employee present. Check expiry dates of documents or visas, check term times if you are employing a student, question any change in name across documents and check for any work restrictions.

Copy – keep the copy securely and record the date of the check. Copy the biodata page plus any other pages with any endorsements or visas, and copy both sides of an identity card.