Burgers and Immigration rules

04 Aug 2016

I’m not wading into the furore about a certain burger chain and  Home Office stings because the facts have been obscured by the righteous indignation stirred up against the employer – also because I’ve eaten one of it’s burgers and thought it very second rate. But this isn’t a critique of the restaurant, it’s a reminder that if a business is going to play the migration game it’d better know the rules of the game before taking the field.

Employing someone who doesn’t have permission to work in this country is a criminal offence. The maximum penalty has recently been increased from two years imprisonment to five years so perhaps HR directors concerns are understandable. The employer can also be liable to a civil penalty of up to £20,000 so perhaps finance directors are now sitting up and taking notice. Yes, there are statutory defences for employers but they carry conditions, chief of which is compliance with the duty to conduct right-to work checks. These checks require employers to:

  • see a document or documents confirming the recruits right to work in this country. There is an exhaustive list of acceptable documents and combinations of documents. The commonly held view that a National Insurance Card is sufficient on it’s own is a dangerous myth;
  • check the authenticity of specified documents in the recruits presence. Does the photograph match the person in front of you? Is the date of birth the same in all the papers produced to you? Is there a common name across the documents produced? Does it look as if the document’s been tampered with? Does it look genuine? Employers aren’t (yet) required to be forensic experts but some of the forgeries out there are so pitifully awful that anyone accepting them deserves to be caught. Careless mistakes can also be rich pickings for the prosecutor. Last year I found myself advising a business which fell foul of the rules because it failed to notice the recruits passport was a year out of date. We corrected the error before it became a problem but it’s easily done, particularly if one’s delegated the on-boarding process to a junior team member who’s not familiar with the Immigration Rules or their implications;
  • keep copies of the documents recording who checked them and when. Then make diary notes. If someone has a visa giving a time limited right to work you need a reminder to review the worker’s status before the visa expires.

It’s not difficult to comply with this part of the rules – in fact it’s quite easy. I’ll be happy to show you how if you’re not sure.