Illegal Working – what you should know

November 16, 2012

Last week, The Telegraph reported that Tesco had been fined £115,000 for employing foreign students who were breaching the conditions of their visas by working too many hours.  Now a fine of £115,000 is hardly going to dent the pockets of the supermarket giant, but were Tesco a medium sized or small business, the effects would far more severe.  And what happens to the migrants themselves?  Deportation with the possibility of an entry ban appears to be the answer.

In light of this and the rise in unannounced UKBA audits reported by our clients this year, we feel that another blog focussed on the issues of illegal working and how to prevent it would not go amiss.

 What is ‘illegal working’?

You might wonder why we’ve posed such a seemingly obvious question, since people generally already know that someone who is working in the UK without a visa can be classed an ‘illegal worker.’  But in practice detecting who is an illegal worker isn’t so straightforward. 

We want to highlight the fact that it is very easy for employers who do not perform the necessary checks to hire nationals whom they have no reason to suspect are working without proper authorisation.  Equally, sometimes it isn’t necessarily obvious to the migrant concerned that they are doing something illegal.

More on this shortly, but first let’s look at the proper definition of what constitutes an illegal worker. 

The law on preventing illegal working is set out in sections 15-25 of the Immigration, Asylum and Nationality Act 2006, which came into force on 29 February 2008.  We are told by the UKBA guidance on the prevention of illegal working (updated in June this year) that the law is in place to:

• make it harder for people with no right to work in the UK to unlawfully gain or keep employment ;
• make it easier for you to ensure that you only employ people who are legally allowed to work for you; and
• strengthen the Government’s controls on tackling illegal working by making it easier for us to take action against employers who use illegal workers.

The legal definition of an illegal worker is someone subject to immigration control, who is aged over 16 and who is not allowed to do the work in question.

So it must be pretty easy to spot individuals who do not have authorisation to work in the UK?  One would assume that an inspection of any migrant’s passport would make this clear.  But, as proven by the constant stream of news reports detailing fines and licence revocations handed out to companies who are employing illegal workers, this is not the case.

Tesco: A Controversial Case Study

Anyone who watches the television fairly regularly will have seen Tesco’s famous ‘every little helps’ adverts.  But it appears from certain news reports that Tesco has not been so keen to help the students it had been employing.

Earlier this year, UKBA officers discovered that non-EEA students had been working between 50 and 70 hour weeks at the Tesco.com building in Croydon, South London.  More than 20 students were arrested in July for breaches of their student visa terms.  Under the current terms of the Tier 4 Student visa, students who were granted the visa after July 2011 are allowed to work for up to 20 hours per week during term time and full-time during vacations.

The Tesco case has sparked considerable controversy since it is reported by The Telegraph that UKBA officials approached Tesco executives shortly before the July raids and asked them to continue giving the students illegal overtime so that they could be ‘caught in the act.’  Questions have also been raised over both the fact that Tesco has received a £115,000 fine rather than the full £200,000 (£10,000 per illegal worker) which could have been imposed and the UKBA’s decision not to downgrade or revoke Tesco’s Tier 2 Sponsor licence.  This may seem particularly controversial in light of the drastic action taken against the London Metropolitan University, which had its Sponsor Licence revoked for breaching its obligations as a Tier 4 Sponsor.

Of the students who were caught working for Tesco in breach of the conditions attached to their Student visas, 20 have now been deported and it is unlikely they will be able to return to the UK.

The case has highlighted the importance for employers of carrying out consistent checks and keeping updated records on all workers they employ.  Equally, it demonstrates how vital it is for foreign nationals to understand the terms and limits of their visas and of course to avoid undertaking any activity which could forfeit their right to remain in the UK.

Advice for Employers

We wanted to highlight some of the key responsibilities which Tier 2 Sponsors should be aware of and the checks which they should be carrying out for all employees hired, regardless of whether they present themselves in the first instance as British or non-EEA nationals. 

If these checks are not carried out, regardless of the reason, the UKBA could and will impose a large fine on the employer for each illegal worker.  However, if an employer knows that someone working for them does not have proper legal authorisation to do so, then the employer could face criminal prosecution.

This duty applies to any employees who commenced work on or after 29 February 2008.  The previous rules under the 1996 Act apply to staff who started working for their employer between 27 January 1997 and 28 February 2008.

The Three Step Process

In order to avoid employing an illegal worker, employers should follow Steps 1 – 3 for every individual they are seeking to employ and every employee with a time limit on their right to work.

Step One

• Request and be provided one of the single documents, or specified combinations of documents, from the two lists drawn up by the UKBA (which can be viewed here).
• Only original documents can be accepted.

Step Two

For each document produced, the employer should take reasonable steps to check it is genuine and that the person presenting it is both the rightful holder and allowed to do the role offered. 

The following examples demonstrate how this can be done:

• checking any photographs are consistent with the appearance of the person; and
• checking any dates of birth listed are consistent across documents and match up with the appearance of the person; and
• checking that the expiry dates of any limited leave to enter or remain in the UK have not passed.

Step Three

The employer must take a copy of the relevant pages of the document in a format which cannot later be altered, for example a photocopy or scan.  The date the copy was made should be noted on the copy of the document and a record should be kept of every document copied.

Maintaining an Employer’s Statutory Excuse

If document checks are performed, the employer will have a statutory excuse against payment of a large fine should an employee turn out to be an illegal worker.

  The following points detail the ways in which an employer can retain their statutory excuse:

• You will only have an excuse if you correctly carry out checks on acceptable documents before person starts working for you by following the 3 step process.
• If a person has a time limit on their right to work, you will only keep your excuse if you carry out repeat document checks at least once every 12 months.
• If a person has a restriction on the type of work they can do and, or, the amount of hours they can work, then you should make sure that you do not employ them in breach of these work conditions.
• You will not have an excuse if you knowingly employ an illegal migrant worker, regardless of any document checks you carry out before or during a person’s employment.

Advice for non-EEA Nationals

As we’ve mentioned above, it is extremely important that migrants understand the limits imposed on their permission to live and work in the UK.  For example, a Tier 2 (General) migrant must not commence work for a new employer without first making a Change of Employment application to the UKBA.  Student visa holders should be aware that they do not have the right to work any hours they choose and should check the Home Office guidance from time to time as this is prone to change.

Of course there are occasions where both employers and migrants knowingly breach their duties or visa conditions, and it is right that they should face penalties for doing so.  But we read of many cases where it has been an error or misunderstanding of the rules that results in severe consequences for all concerned.

We hope this has been useful and welcome your comments below.

If you have any questions or concerns about your UKBA audit then please contact us for some free advice.