Preventing Illegal Working

Posted in : Back to Basics on 30 April 2019
Rob Tubman
A&L Goodbody

In the second instalment of our new video series in partnership with A&L Goodbody, Rob Tubman, Solicitor in A&L Goodbody's Employment and Incentives team,  Belfast, discusses the legal requirements for employers to conduct ‘Right to Work’ checks for all potential workers to avoid any breaches of immigration legislation and prevent illegal working.  

In this video he sets out three simple steps that employers should follow to promote legal working and also touches on the EU settlement scheme outlining how employers can support those workers who wish to remain in the Northern Ireland. 

Since this video was recorded the Government has announced that all fees under the EU Settlement Scheme have been scrapped.

 

Transcript

So today I'm going to talk a lot about employer's right to work checks, which should be a real basic but often we see that they're mishandled. These are only going to become more important in the context of Brexit on the horizon. Going to touch a little bit on how, why, and when you need to do them.

Duty to prevent illegal working

And remember that as an employer, you have a duty to prevent illegal working under immigration legislation. In the UK, illegal migration is a real problem. A simple three-step check to confirm a potential employee is entitled to work in the UK, if you carry this out you may have a statutory excuse if subsequently the employment turns out to be unlawful.

And remember, there are two sets of penalties. There's a civil penalty, so if you don't carry the checks properly, you could face a fine of up to £20,000. And secondly, a bit more dangerously, it's a criminal offense if you know or if you have reasonable cause to believe that you employ someone who is an illegal worker. And the penalties for that are up to five years imprisonment or you could face an unlimited fine.

Right to work checks

So just going through the basic steps of the check, and essentially its three steps, three simple steps.

  1. Number one, you want to obtain original documentation. This could be a passport or a national ID card.
  2. Secondly, you want to check that the documents are valid, ideally with the individual present so you can check facial features, things like that. And it is a basic check. If you're not an expert in forgeries, no one's expecting you to know. But if it looks like it has obviously been tampered with, you should flag this.
  3. And then finally, you want to make and keep a clear copy of the document and a keep a record of the date of the check being carried out.

Timing of right to work checks

As well, you should carry out this check before you employ a person. Sitting down with the head of HR five minutes before your first day isn't good enough and it's not going to cut it. And also, you should check all potential hires, so not just people who you think may be migrants. And it's really important to not guess at someone's origin. Keep yourself right and check everyone.

Legal migration of workers

And that was touching on illegal migration and the steps to prevent it, but what about legal migration? So in Northern Ireland, the local work force, much like the rest of the UK, has a heavy reliance on EU workers, sectors like manufacturing, agri-food, and hospitality in particular. In fact, following the crash in 2008 up until about 2016, EU migrant workers were the key driver in employment recovery and growth in NI. And lately, this has sort of changed. So there's been a downward trend generally in the number of EU workers employed in NI. And this has come about since the ‘Leave Vote’ in 2016. But it's a more general trend, and certainly Brexit doesn't help things. You're looking at around about 26% drop in numbers since 2016.

And so, we have this Brexodus of sorts, if you will, where employers are finding that workers are leaving and they're not coming back. So understandably this is a real concern for businesses. And they find it increasingly difficult to keep EU workers, and worse, recruit replacements from the local population.

EU Settlement Scheme

So as an employer, how do you go about reassuring your work force? Well, helpfully the government will implement the EU settlement scheme. And essentially what this is, is if you're an EU citizen and you want to stay in the UK beyond the 31st December 2020, you and your family members need to apply to this scheme. And it's useful at this point to point out if you're an Irish citizen you'll not need to apply, but remember, if you have family members from outside the UK or Ireland, they will.

So the scheme is currently in a trial period but it's expected to be fully open by the 30th of March 2019. And under that scheme there are two types of status that you can apply for. There's settled status and there's pre-settled status. The difference being, settled status, if you've been resident in the UK for a continuous period of more than five years, you can apply for settled status and essentially that means there's no limit on your stay, provided that you stay in the UK. So if you were to be absent for five years, for example, your status would lapse.

And then secondly there's pre-settled status, which is slightly different in that if you've been a resident for less than five years, what this does is it allows you to stay in the UK up to that period of five years, which will then allow you to become eligible for settled status.

And again, it's a simple application. The government's aiming to make this as streamlined as possible. So all you do is fill in a short online application using a computer, a tablet, or even your smartphone, and there are four simple steps. Again, verification of identity, and all you do is scan your passport or your national identity card or your biometric residence if you're not an EU citizen.

You confirm your residence. You can do this using your national insurance number, or if you don't have one, you can provide additional documentation. And then you complete a simple criminality check where you have to declare criminal convictions. And remember, it's only serious or persistent criminality that will have an effect on your application.

And then finally it's payment. And it's a relatively inexpensive scheme. For an adult, it's around £65, and then half that for children under 16.*

Do’s and don’ts of Right to Work Checks

So everything we've talked about so far, there are certain dos and don'ts that come out of it. I'm just going to run through those. So don't try and interpret the information that's readily available. So you can sign post your employees to the government websites and documentation. And remember, legally, you can't give immigration advice to your employees unless you're qualified to do so. And again, don't discriminate against EU citizens. This uncertainty abounds, but in terms of your current work force and recruitment processes, you have a duty not to discriminate.

And then finally, what are some of the key takeaways? Well, as we've said, current right to work checks are in place and the status of EU workers won't change in the UK until 2021, so keep carrying out right to work checks. And again, it's important to remember this applies to all applicants, and also if you carry them out correctly, it may give you a statutory excuse if it turns out that the employment is subsequently unlawful.

And then just touching again on the EU settlement scheme, it'll be fully open by 30 March 2019.  And applicants will have until June 2021 to apply. And certainly, you can encourage your workers who wish to remain in the UK beyond that to apply because you're not obligated to pay for their application. Of course, you can do so if you want.

And just in general, as always, there are a lot of unknowns surrounding Brexit, but it's never too late to be prepared. And again, the guidance is out there aimed at helping employers.

* Please note that the Government has stated that all fees under the EU Settlement Scheme have been scrapped.  More from the BBC:
https://www.bbc.co.uk/news/uk-politics-46950719

This article is correct at 30/04/2019
Disclaimer:

The information in this article is provided as part of Legal-Island's Employment Law Hub. We regret we are not able to respond to requests for specific legal or HR queries and recommend that professional advice is obtained before relying on information supplied anywhere within this article.

Rob Tubman
A&L Goodbody

The main content of this article was provided by Rob Tubman. Contact telephone number is +44 28 9031 4466 or email rtubman@algoodbody.com

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