UK Border Agency recruits 10 illegal immigrants and Minister Mark Harper has an illegal cleaner.
UK Border Agency recruits 10 illegal immigrants and Minister Mark Harper illegal employed a foreign worker as a cleaner.
If neither the Government nor its appointed administrators can get it right, isn't it time UKBA stopped punishing small employers for innocent mistakes?
Last month Tory minister Mark Harper (the man behind the ‘go home or you’re nicked’ mobile van campaign) resigned after he realised that his own cleaner was an illegal immigrant. UKBA, the agency capable of fining employers £10,000 per illegal immigrant, employed 10 of them (did they fine themselves we wonder?) and the Home Office employed an illegal immigrant from Nigeria…..as a security guard.
So what chance have we small employers got with our limited resources when even the powers that legislate this stuff get it wrong? myhrdept’s top tips might just help you avoid joining the statistics.
To be fair UKBA and the Home Office employ a lot of people (approaching 50,000 between them) so the odd mistake is (perhaps?) inevitable. Mr Harper however is more typical of the small employer and can’t hide behind volume of staff to cover his error.
Employers are already obligated to assure their employees are able to work legally and may face a £10,000 fine per illegal immigrant for accidents like Mr Harper’s, or an unlimited fine and jail if they deliberately have an illegal on their team. Under proposals announced last year it is likely that landlords will soon have a duty to spot illegal immigrants too, and it has been mooted that the same may apply to hoteliers, a practice common in Europe.
UKBA tell us in their summary guide that employers must make ‘reasonable efforts’ to build the ‘statutory excuse’, i.e. the proof that the employer did everything that could be reasonably expected of them to check that a new employee was legally able to work. In a nutshell this entails (and we’ve included the more detailed guidance below):
1. Checking eligibility to work BEFORE people are allowed to start work
2. Checking the documents presented are on the acceptable list (known as List A and List B and featured in the summary guide)
3. Checking the documents appear genuine and do relate to the person in question
4. Keeping copies of all the documents, signed and dated, as proof (Mr Harper said he did do so, but subsequently lost them)
5. Rechecking every 12 months in the case of people with List B permission (Mr Harper also tripped up on this one)
What many employers fail to appreciate is that illegal working extends not just to those who can or cannot work, but also those who have limited working rights, foreign students for example, who often have limited working hours. If these hours aren’t carefully controlled the student turns from a legal worker to an illegal one and the same punishment regimes apply.
While the 5 points above seem to be reasonably common sense, Mr Harper revealed his human fallibility in not having these diarised and properly followed through. His (probably temporary) spell on the backbenches will give him time to dwell not just on the irony of the matter, but also we hope on the fairness of punishing or threatening to punish employer’s similarly innocent mistakes.
Small private employers will not get everything right all the time (can you see that now Mr Harper, UKBA, Home Office etc.?) and isn’t it a shame that the very sector private companies fund threatens us with punishments and fines, instead of perhaps setting up systems to help us verify that the people we employ are fully legal. Those who have attempted to contact UKBA to verify an employment document will know exactly what we mean.
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The full UKBA guidance to eligibility checking (from the UKBA summary guide):
You must ask for and be given one of the single documents, or specified combinations of documents from List A or List B. You must only accept original documents.
For each document you must take reasonable steps to check that it is genuine and satisfy yourself that the person presenting it is both the rightful holder and allowed to do the type of work you are offering. You should do this by:
- checking any photographs are consistent with the appearance of the person; and
- checking any dates of birth listed are consistent across documents and that you are satisfied that these 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; and
- checking any UK government endorsements (Biometric Residence Permits, stamps, stickers, visas) to see if the person is able to do, or can continue to do, the type of work you are offering; and
- satisfying yourself that the documents are genuine, have not been tampered with and belong to the holder; and
- asking for a further document in explanation if you are given two documents which have different names. The further document could, for example, be a marriage certificate or a divorce decree absolute, a deed poll or statutory declaration.
You 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. In the case of a passport or other travel document, the following parts must be copied:
- The document’s front cover and any page containing the holder’s personal details; and
- Any page containing UK government endorsements showing their permission to be in the UK and their right to carry out the work you are offering.
You must copy all other documents in full; this includes both side of a Biometric Residence Permit.
We advise that you write on the copy of the document the date on which you took the copy.
You must then keep a record of every document you have copied. We recommend that you keep copies of the documents securely for the duration of the person’s employment and for a further two years after they stop working for you. By doing this, we will be able to check whether you have complied with the law or if you are required to pay a civil penalty if we find anyone working illegally for you.