The Home Office's approach to illegal immigrants has toppled a Home Secretary and forced a cabinet reshuffle, with many stories of suffering emerging from the Windrush generation. Alongside, employers find themselves between a rock and a hard place in implementing checks on an individual's right to work in the UK.
The Windrush immigration scandal has highlighted many stories of individual suffering from people who believed they were legitimately living and working in the UK.
Many have lost their jobs and while it may seem employers have been unduly harsh, under the Immigration Act 2016 every employee must be subject to what is known as a Legal Right to Work check. Implementing these checks, many employers have highlighted the difficult position of trying to apply a set of inflexible rules in very different situations, and with onerous penalties, if they get it wrong. They point also to the difficulty of getting up-to-date information on individuals when checking through the official channels, making for difficult decision making, 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
As an employer, you are committing a criminal offence and can be jailed for up to five years and suffer an unlimited fine, if you're found guilty of employing someone where you knew or had 'reasonable cause to believe' they didn't have the right to work in the UK.
Even if it's not intentional, if you fail to do the right checks, or don't follow them through and document them fully, you can still be penalised if you employ someone who doesn't have the right to work. While the penalties are lower, they are a serious burden, especially for smaller businesses, involving a fine of up to £20,000 for each illegal worker. There's also the loss of reputation as such cases may be used by the authorities as a warning to others.
To protect their business, employers need to make and keep 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.
And while employers can use the online Employer Checking Service for pending applications, there are reports of long delays on updates to the status of individuals as their application progresses, meaning employers may find a negative result, even if the application has been approved. It means that even long-standing employees may face dismissal if employers cannot get the confirmation they need.
Similarly, non-EEA national family members who are in the process of applying for a residence card often wait two to three months for their Certificate of Application from the Home Office, which gives evidence of their right to work.
Looking ahead, employers expect more challenges as Brexit progresses, and a new system for employing EU nationals is introduced.
Said employment law specialist, Kim Faivelowitz of Ward Gethin Archer Solicitors: "It's a big challenge for business, and it doesn't end when you've done the checks and employed someone. If someone has the right to work when you employ them, but with a time-limited permission, then you need to be following up on that at the right time. And while applicants receive an automatic extension of their leave whilst the application is pending with the Home Office, if their application was not made in a proper format, with the right fee, it will be invalid and mean they are an illegal worker immediately their visa expires. This places further responsibility on an employer, with best practice being to vet any such applications to demonstrate they have done all the relevant checks."
Kim added: "It's crucial to have a well-documented record of all activities for each employee, as employers are between a rock and a hard place. Most simply want to be a good employer and run a successful business, but may find themselves focused on satisfying the Home Office while trying to ensure they do not place themselves in a position where an employee may take them to a tribunal for unfair dismissal, despite their best intentions."
One such case that went to tribunal involved a Royal Mail worker whose application for an extended right to stay had suffered long delays, and he found himself dismissed. But in Nayak v Royal Mail Group Ltd, the employer was able to demonstrate they had made significant efforts to clarify the position, and over a period of time, leading the tribunal to rule that they had acted on a "genuine and reasonable belief".
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