Last November, the Home Office suffered the worst kind of publicity imaginable when it emerged – by way of a report in The Sunday Mirror – that, prior to last July, approximately 5,000 immigrants without the right to work in the UK had mistakenly been cleared to serve as security operatives in the private sector (‘What the Security Doctor didn’t order’, SMT Editor’s View, 27.11.2007).
Some of these immigrants had been deployed by the Metropolitan Police Service, while others were working at highly sensitive UK sites (including airports). Post-July 2007, the Security Industry Authority (SIA) began to carry out right to work checks on 100% of applicants for a security licence (excluding, of course, EU and European Economic Area nationals who enjoy an automatic right to work in the UK), although the Regulator was (and still is) under no obligation to do so (‘Security industry “determined to tackle illegal worker problem'”, News Update, SMT, February 2008, p6).
The Home Office is insistent that this obligation rests squarely with employers and, to prove the point, introduced legislation on this matter on 29 February – legislation about which security companies and their clients must be fully aware and adhere to all times.
As will become apparent, the consequences of ignorance will be painful indeed.
Entitlement to work in the UK
There are plenty of misconceptions over who is entitled to work in the UK. Those who are nationals of a pre-1994 Member State of the European Union (Austria, Belgium, Cyprus, Denmark, Finland, France, Germany, Greece, Ireland, Italy, Luxembourg, Malta, Netherlands, Portugal, Spain, Sweden and the UK) or the EEA (the above plus Norway, Iceland and Liechtenstein) and Swiss nationals are generally free to take employment in the UK.
What about nationals of the new EU Member States? Nationals of the eight countries that joined the EU in May 2004 – namely the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Slovakia and Slovenia (collectively known as the ‘A8’) – are generally required to register with the Home Office under the Worker Registration Scheme when they take work in the UK. It’s an offence to take on an A8 national without the employee being registered.
Once an employee has been working in the UK legally for 12 months without a break in employment, the requirement to register no longer applies and they can obtain a residence permit confirming their right to both live and work in the UK. Nationals of Romania and Bulgaria – the ‘A2’ countries – that joined the EU on 1 January 2007 must not start working in the UK before they receive authorisation from the Home Office. It’s most certainly an offence for an employer to employ an A2 national without the necessary authorisation.
For authorisation, the employer has to apply for a work permit for the prospective employee. Once approved, the employee must then make an application for an Accession Worker Card.
Nationals from other States
Most nationals of other States are subject to immigration controls and require work permits according to different eligibility requirements. From March 2008, a points-based system – similar to that operating in Australia – will begin. This is geared to enable the UK to control migration more effectively, tackle abuses of the system head on and identify the most talented workers.
As of 29 February 2008, the Immigration, Asylum and Nationality Act 2006 repeals Section 8 of the Asylum and Immigration Act 1996, introducing two new penalties for employing illegal workers. Employers now face a custodial sentence of up to two years and/or an unlimited fine if they knowingly employ an illegal worker. The maximum civil penalty for this offence has been increased to GB pound 10,000. An employer can be fined for each person employed illegally.
An employer will have a defence if the (prospective) employee provides the employer with certain document(s) listed below. These are similar to the documents currently required to establish a defence under Section 8 of the Asylum and Immigration Act 1996.
The employer has duties, though. They need to take reasonable steps to check the validity of the document(s), and keep copies of the relevant document(s) for at least two years after employment terminates. The employer must also satisfy itself that any photograph(s) in the documents are of the (prospective) employee, and that the (prospective) employee’s appearance is consistent with any date of birth in the document(s).
All reasonable steps must be taken to check that the (prospective) employee is the rightful owner of the document(s). Employers must retain copies of any document(s) that are not passports or other travel documents both in their entirety and in a format that cannot be subsequently altered.
Practical steps to be taken
Employers cannot rely on the statutory defence if they have made the relevant right to work checks but know that the individual concerned isn’t entitled to work in the UK. That being the case, any formal offer of employment should require the potential employee to produce the necessary documentation to establish their right to work in the UK as a condition of the offer of employment.
Employers MUST check the relevant documents before employment begins in order to meet the strict requirements of the statutory defence. Which documents, then, must an employer scrutinise? These documents include any one of the following:
- A passport showing that the holder is a British citizen or a citizen of the UK or colonies having the right of abode in the UK;
- A passport or national identity card showing that the holder is a national of the European Economic Area or Switzerland;
- A residence permit (or a permanent residence card) issued by the Home Office or the Border and Immigration Agency (BIA) to the family member of a national of an EEA country or Switzerland;
- A passport or other travel document endorsed to show that the holder is exempt from immigration control;
- A birth certificate issued in the UK (which includes the name of at least one of the holder’s parents);
- A birth certificate issued in the Channel Islands, the Isle of Man or Ireland;
- A certificate of registration or naturalisation as a British citizen;
- A letter issued to the holder by the Home Office/BIA indicating that the person named in it is allowed to stay indefinitely in the UK.
Alternatively, an employer can use any of the following documents issued by the BIA: a Biometric Immigration Document, a work permit or other approval to take employment, a Certificate of Application, a residence card or document, an Application Registration Card or an Immigration Status Document.
Points-based immigration system
The new system will consolidate more than 80 existing work and study application routes and award points to reflect aptitude, experience, the level of need in any given sector and the likeliness that the applicant will comply with their immigration requirements. In Tiers 1 and 2, points will also be awarded for attributes such as age, previous salary or prospective salary and qualifications. For each tier, applicants will need to score sufficient points to obtain entry clearance to remain in the UK.
Tier 1 applies to highly-skilled individuals such as entrepreneurs, investors and graduate students. This is designed to replace the Highly Skilled Migrant Programme, the Entrepreneur and Investor Schemes and the International Graduates Scheme. Tier 2 focuses on skilled workers with a job offer to fill gaps in the UK’s workforce. Tier 3 refers to the limited numbers of low-skilled workers needed to fill temporary labour shortages. Tier 4 is all about students and Tier 5 youth mobility/temporary workers.
All applicants in Tiers 2-5 will need to provide a Certificate of Sponsorship from an approved sponsor when making an application. The Certificate of Sponsorship will act as an assurance that the migrant is able to do a particular job or course of study.
Providing financial securities
Employees whose personal circumstances or route of migration suggests that they present a high risk of breaching the immigration rules will be required to provide financial securities.
Dependants of employees are allowed under Tiers 1, 2, 4 and 5. However, dependants will not be allowed to work where accompanying a student (Tier 4) or a temporary worker (Tier 5) who has been given less than 12 months leave in the UK.
The new system is being phased in tier-by-tier. Tier 1 is being launched now, Tiers 2 and 5 are scheduled to be introduced in the third quarter of 2008 and Tier 4 will follow on at the beginning of 2009.