Immigration Minister caught out by his own laws

There are a number of ways we could have chosen to report on this news as it touches upon a variety of different and important immigration aspects. However, if the person most intimately involved in matters of immigration can get the right to work checks wrong, the news is very worrying for us common mortals. So, this news (and blog entry) is a strong reminder to all employers to take their duty to prevent illegal working seriously.

For Points Based System licence holders, complying with all immigration laws including the Prevention of Illegal Working legislation and Points Based System requirements is one of the duties imposed strictly on a Sponsor. Under the Immigration, Asylum and Nationality Act 2006 employers have a duty to prevent illegal working by carrying out document checks to confirm if a person has the right to work in the UK.  An employer is expected to check and keep copies of original acceptable documents before the employee starts their employment.  You are required to repeat the above check at least once every 12 months if the employee has a time limit on their stay.  If a person has restrictions imposed such as the type of work they can do, then employers must not employ a person in breach of these conditions.

To ensure that a Sponsor employing migrant workers is complying with immigration laws, they must fulfil the following general duties:

• Ensure that the migrant is legally allowed to do the job on offer.  The migrant must therefore have the correct registration or professional accreditation needed by law.

• Ensure that the migrant has the appropriate permissions allowed for by their immigration status do the job in question.

• Ensure that certificates of sponsorship (CoS) are assigned to those who, to the best of the Sponsor’s knowledge, meet the requirements of the tier or category they are applying for.

• Ensure there is the appropriate planning permission or local planning authority consent to operate at the Sponsor’s trading address.

• Ensure that UK employment law such as the national minimum wage is complied with.

• Ensure that the Sponsor is registered with or approved by the appropriate food authority if they are operating a food business.

• Ensure all conditions of a Work Permit are complied with if the Sponsor is employing a migrant holding a work permit.

If a Sponsor fails to comply with any of their duties, the Home Office will take action against them. This could result in their licence being revoked, suspended or downgraded to a B-rating, and/or a reduction in the number of CoS allowed to be assigned.

Any employer who is found to be employing illegal workers can be fined up to £10,000 per worker or if they knowingly employ an individual without the legal right to work in the UK will receive a custodial sentence of up to two years and/ or an unlimited fine.

If you are an employer and would like to find out more including Right to Work checks, and mock audits to ensure compliance, we can help and would be delighted to do so. Please contact our London office on 020 7494 0118 or Aberdeen office on 01224 826 573.