Increased fines for illegal working

Since 29th February 2008, employers who negligently hire illegal workers have been liable to face a maximum fine of £10,000 for each illegal worker. If employers have knowingly hired illegal workers they could incur an unlimited fine and a possible prison sentence.

It should be emphasised that it was already an offence (under Section 8 of the Asylum and Immigration Act 1996) for businesses to employ illegal workers. However, under the new Immigration, Asylum and Nationality Act 2006 the rules have been tightened and the maximum fine has doubled.

To best protect themselves, employers will need to carry out a full check on every new employee before they start their employment. This should be regardless of the nationality of the new employee. Employers must take care not to engage in direct or indirect race discrimination. The Border and Immigration Agency ( previously the Immigration and Nationality Directorate ) have issued a Code of Practice regarding this.

If a full check has been carried out and if the employer genuinely does not believe that the employee is an illegal worker, then the employer will have a statutory excuse, even if the person is subsequently found to be an illegal worker.

The employer will need to take a copy of documents, typically a passport, showing that the employee has the right to work in the UK. The employer should only accept original documents.

The employer should take all reasonable steps to check that the document is valid. The employer must also be satisfied that the prospective employee is the person named in the document. This includes checking that any photographs are consistent with the appearance of the employee and that the date of birth is consistent across all documents. You may be thinking that this means you are required to be an expert on forged documents. The guidance states that you would only be fined if the falsity of the document is “reasonably apparent” to an untrained person who has no access to technological aids. The Border and Immigration Agency run an Employer Checking Service to assist employers unsure as to the validity of a document.

The employer should photocopy the front cover, the page(s) with a photograph, the person’s details and the date of expiry of the passport, any biometric details and any relevant UK immigration endorsements. These copies should be kept securely. It should be noted that the provision of a national insurance number in isolation is not sufficient.

There are also duties on employers to check these details once again 12 months after the initial check in the case of British, EEA and Swiss Nationals. Employers must do repeat checks every 12 months for people of other nationalities.