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Immigration and Employment law - the rock and the hard place for employers

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In the wake of the Windrush immigration scandal, employers find themselves between a rock and a hard place when implementing checks on the rights of individuals to work in the UK. 

Many who believed they were legitimately living and working in the UK have lost their jobs. However, whilst it may seem that employers have been unduly harsh, the terms of the Immigration Act 2016 require that every employee must be subject a Legal Right to Work check. In the process of implementing these checks, several employers have highlighted the difficulty of trying to apply a set of inflexible rules to vastly differing situations, and face onerous penalties if they get it wrong. They also highlight the challenge of getting up-to-date information on individuals when checking through official channels, which creates decision-making difficulties, even when it involves a long-standing employee. 

The checks are designed to establish whether someone has:  

  • unexpired permission to enter or remain in the UK
  • permission to do the type of work involved
  • genuine, accurate and up to date identity papers 

You are committing a criminal offence if you employ someone who you knew, or had ‘reasonable cause to believe’, did not have the right to work in the UK. If found guilty, you can be jailed for up to five years and suffer an unlimited fine. 

If you fail to do the right checks or do not follow them through and document them fully, even unintentionally, you can still be penalised for employing someone who does not have the right to work. While the penalties are lower in this situation (involving a fine of up to £20,000 for each illegal worker), they are a serious burden, especially for smaller businesses. Reputational damage caused in such cases may be used by the authorities as a warning to others. 

To protect their business, employers must hold copies of all the required documents, with a record of when the checks were made, including the name and signature of the person who undertook them. 

Whilst employers can use the online Employer Checking Service for pending applications, long delays on updates to the status of individuals as their application progresses have been reported, meaning employers may receive a negative result even if the application has been approved. Even long-standing employees may face dismissal if employers cannot get the confirmation they need.  

Similarly, non-EEA national family members applying for a residence card often wait 2-3 months for their Certificate of Application from the Home Office, which gives evidence of their right to work. 

With a new system for employing EU nationals expected following Brexit, businesses face a big challenge for which does not end when all the checks are complete and an appointment has been made. If someone has the right to work when you employ them, but with time limited permission, you will need to follow up on that at the right time. 

Applicants receive an automatic extension of their leave whilst their application is pending with the Home Office. However, if it was not made in a proper format with the right fee, it will be invalid and they will become an illegal worker once their visa expires. This places further responsibility on an employer and best practice is to vet any such applications to demonstrate that all relevant checks have been completed. It is crucial to have a well-documented record of all action for each employee.

One tribunal case, Nayak v Royal Mail Group Ltd, involved a Royal Mail worker whose application for an extended right to stay suffered long delays and he was subsequently dismissed. However, the employer demonstrated their significant efforts to clarify the position and the tribunal ruled that they had acted on a “genuine and reasonable belief”. 

For more information on how immigration law affects employers, please call Alison Banerjee on 01733 888888 or visit www.buckles-law.co.uk

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