Asylum And Immigration
The Asylum and Immigration Act 1996 and The Immigration, Asylum and Nationality Act 2006 The 1996 Act made it unlawful for employers to recruit individuals who did not have permission to work in the UK. The 2006 Act strengthened this principle but did not apply to anyone employed before that date who was subject to the 2004 guidance - see the UK Border Agency website: https://www.gov.uk/government/collections/employers-illegal-working-penalties COPYRIGHT © 2021 THE CHARTERED INSTITUTE OF PAYROLL PROFESSIONALS The UK Border Agency (UKBA) published a code of practice for employers to accompany the 2006 Act. The code of practice is statutory; it does not impose legal obligations on employers nor is it a statement of law. It can however be used as evidence in legal proceedings. The Code reminds employers of their responsibilities under the act which must be exercised without race discrimination i.e. that all prospective employees have their right to work checked and at the same stage in the recruitment process. A copy of the code, which was updated in August 2017, may be obtained from the UKBA website as above. From 29 February 2008 new measures were introduced to tackle illegal working including a system of penalties that include: • a maximum civil penalty per illegal worker of £20,000 for employers who employ illegal migrant workers. This is reduced depending on the number of breaches and also if the employer makes payment within 21 days. Employers can also pay the penalty by instalments up to 24 months and sometimes up to 36 months • fromApril 2016, a maximum five years (was two years) prison sentence and/or an unlimited fine for employers who ‘knowingly’ use illegal migrant labour (a new criminal offence) • a continuing responsibility for employers of migrant workers with a time-limited immigration status to check their ongoing entitlement to work in the UK on the 12 month anniversary of the first check (on expiry of any time limited leave to remain when the 2013 bill was passed) Employers have a statutory defence from conviction and/or the above fines where they check and record certain specified documents. The three step procedure for checking the right to work in the UK should ideally be carried out pre-employment as the employer has no defence until it is complete. Where a potential employee is not permitted to work the employer is entitled to refuse employment. Equally when the employer carries out the repeat check at 12 months (end of leave to remain) on those with limited leave to remain they must end the contract of any individual if they are certain that an individual no longer has the right to work in the UK. UK BA guidance as above provides details of documents that are acceptable to provide a statutory defence for the employer against prosecution. It was updated in October 2013. • List A - documents which can be used singly or in combination which when checked and copied thereafter provide an employer with defence against prosecution. If an employer can check any of the documents from list A there is no need to ask for further documents contained in list B. • No printing, copying or reproduction permitted. List B - documents, or combination of documents, which provide a defence but carry a need for post-employment checks. Where the document shows a limited leave to remain, employers must diarise when this is due to expire and check that new permission has been granted or employment must be terminated.
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