Last updated 18:35, Sunday, 06 April 2008

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Official documentation: A list of required checks for employers to make has been issued by the Border and Immigration Agency

NEW legislation came into force at the end of last month to prevent illegal working. The Immigration, Asylum and Nationality Act 2006 puts the onus firmly onto employers to check and copy documentation to prove that potential employees are legally entitled to work in the UK.

Employers who knowingly employ an illegal worker could be fined up to £10,000 per illegal employee.

The act, which came into force at the end of last month, will make it more difficult for people to overstay their permitted time in the UK and make it easier for the Border and Immigration Agency to take action against employers using illegal workers.

However, this legislation shouldn’t be dismissed as being just about migrant workers – it affects the recruitment process for every employee, regardless of nationality.

Employees starting work on or after February 29, 2008 will have to produce certain documentation, from one of two agreed lists, before they start work. Employers must check the validity of these documents and take a copy for their records to establish an excuse against liability for a penalty. Where checks are not completed, the minimum suggested penalty is £2,500 per illegal worker.

The documents lists have been produced by the Border and Immigration Agency: list A includes documents (or combinations of documents) which will give permission to work for the whole employment period such as a UK passport or a Biometric Immigration Document which indicates an indefinite stay is allowed; list B includes documents such as a Home Office residence card or an Application Registration Card which gives limited leave to be in the UK. Documents from List B will need to be re-checked at least every 12 months.

Checking documentation should be part of the recruitment process for all job applicants, regardless of nationality otherwise employers could be guilty of operating discriminatory recruitment processes and might be prosecuted under race relations legislation. The other concern for employers is that they may not be able to recognise all these various documents.

The Border and Immigration Agency has also made it clear that while business owners are not expected to be expert on forgeries, they are expected to be careful in their checks.

To help employers identify the different permits, certificates and identity cards, the agency has produced a booklet; Comprehensive Guidance for Employers which includes images of the different documents.

• Joanne Stronach, a partner in Burnetts’ Employment Law team, said: “Under the Asylum and Immigration Act 1996, employers were already required to make checks albeit from a much longer list and with smaller penalties for non-compliance. It’s my experience that many Cumbrian employers didn’t carry out those checks on all applicants so it’s worth highlighting these new requirements.”
• For further information on employment law contact Joanne on 01228 552222.
• Links to Home Office guidance can be found at www.burnetts.co.uk.