Illegal Working Nov 2010

8/8/2019 Illegal Working Nov 2010

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PREVENTION OF ILLEGAL WORKING

IMMIGRATION, ASYLUM ANDNATIONALITY ACT 2006Comprehensive Guidance or Employers on Preventing Illegal Working

November 2010


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GUIDANCE FOR EMPLOYERS ON PREVENTING ILLEGAL WORKING

Introduction ...................................................................................................................................................4

The law or employers on preventing illegal working .........................................................................................5

How to check that someone is entitled to work in the UK ................................................................................8

How to avoid racial discrimination when preventing illegal working ................................................................11

The sponsorship and employers helpline .......................................................................................................12

What level o civil penalty might I have to pay? .............................................................................................14

Objections and appeals to the civil penalty ....................................................................................................15

Further inormation.......................................................................................................................................17

List A - Documents which provide an ongoing excuse.....................................................................................20

List B - Documents which provide an excuse or up to 12 months ...................................................................32

Appendix A - Some questions you might have ................................................................................................44

Appendix B Employing asylum seekers and reugees ...................................................................................64

Appendix C - Employing nationals rom the European Economic Area ..............................................................67

Appendix D Employing students..................................................................................................................71

Appendix E - Guide to UK government stamps and endorsements ...................................................................72

Appendix F - Framework or assessment o level o civil penalty .....................................................................78

Appendix G - Flowcharts or carrying out document checks ............................................................................79

Terms and abbreviations ...............................................................................................................................81

CONTENTS


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GUIDANCE FOR UNITED KINGDOMEMPLOYERS ON PREVENTING ILLEGALMIGRANT WORKING IN THE UK

The aim o this guidance is to help UnitedKingdom employers understand the law on illegalworking and their role in this. It includes details othe document checks that employers are advised toundertake and provides images o the documentsand stamps/endorsements that may be presentedby migrant workers as evidence o their right towork in the UK.

This booklet has been produced by the UK BorderAgency and contains inormation and advice oremployers. It is intended to be a useul reerencetool or Human Resources sta who are likely to beinvolved in the recruitment and retention o sta.

This version is an update o the original guidanceissued in 2008.

The inormation contained in this document wascorrect at the time o publication, but may besubject to revision.

For current inormation and updates, please visitthe UK Border Agency website:www.ukba.homeoce.gov.uk/employers/preventingillegalworking
http://www.ukba.homeoffice.gov.uk/employers/preventingillegalworkinghttp://www.ukba.homeoffice.gov.uk/employers/preventingillegalworkinghttp://www.ukba.homeoffice.gov.uk/employers/preventingillegalworkinghttp://www.ukba.homeoffice.gov.uk/employers/preventingillegalworking


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THE LAW FOR EMPLOYERS ON PREVENTINGILLEGAL WORKING

The law on the prevention o illegal migrant working isset out in sections 15-25 o the Immigration, Asylumand Nationality Act 2006 (reerred to in this guidanceas the 2006 Act). These provisions came into orce on29 February 2008. They replaced the previous oenceunder section 8 o the Asylum and Immigration Act19962 (reerred to in this guidance as the 1996 Act).

The changes were made or three key reasons:

to make it more dicult or people who overstaytheir permission to be in the UK and/or lose theirentitlement to work to remain in employment inbreach o the UKs immigration laws;

to make it easier or you to ensure that youemploy people who are legally permitted towork or you; and

to strengthen the Governments controls ontackling illegal working by making it easier orthe UK Border Agency to take action againstemployers who use illegal labour.

The UK Border Agency is committed to simpliyingright to work checks or employers and the list ospecied documents that employers can accept.The UK Border Agency started issuing BiometricResidence Permits (BRPs)3 to non-EuropeanEconomic Area (EEA) nationals in November2008 which help employers to check identity and

entitlement to work. The BRP refects a uniormormat being introduced across the European Unionor residence permits allowing a non-EEA national tostay in a member state or more than 6 months. TheUK Border Agency will progressively replace paper-based documents/endorsements with BRPs. See ListB (page 34) or a picture o a BRP which is the sizeand shape o a driving licence photocard. Further

2 As amended by section 22 o the Immigration and Asylum

Act 1999, section 147 o the Nationality, Immigration and

Asylum Act 2002 and section 6 o the Asylum and Immigration

(Treatment o Claimants, etc.) Act 2004.3 Biometric Residence Permits are a orm o residents permit,

and replace the vignettes (or stickers) previously placed in

passports. This only applies to oreign nationals o countries

outside the European Economic Area who are granted leave to

remain in the United Kingdom.

inormation on BRPs is to be ound on the UKBorder Agency website:www.ukba.homeoce.gov.uk/employers/preventingillegalworking/checking-brp

HOW DID THE LAW CHANGE FOR EMPLOYERS

ON 29 FEBRUARY 2008?

From 29 February 2008 i you have not conductedappropriate checks, you may be liable to pay a civilpenalty i you employ someone who is:

subject to immigration control;

aged over 16; and

not entitled to undertake the work in questionbecause either they have not been grantedleave to enter or remain in the United Kingdom orbecause their leave to enter or remain in the UK:

is invalid,

has ceased to have eect (whether by reasono curtailment, revocation, cancellation,passage o time or otherwise), or

is subject to a condition preventing themrom accepting the employment.

Persons who were employed between 27 January

1997 and 28 February 2008 continue to be governedby the previous regime under the 1996 Act.

Civil penalties o up to 10,0004 per illegal workercan be imposed on employers. A notice o liability(NOL) to pay a civil penalty o a specic amountcan be served by the UK Border Agency on behalo the Secretary o State.

-

-

-

4 This is the maximum amount prescribed in the Immigration

(Employment o Adults subject to Immigration Control)

(Maximum Penalty) Order 2008 (S.I. 2008/132)
http://www.ukba.homeoffice.gov.uk/employers/preventingillegalworking/checking-brphttp://www.ukba.homeoffice.gov.uk/employers/preventingillegalworking/checking-brphttp://www.ukba.homeoffice.gov.uk/employers/preventingillegalworking/checking-brphttp://www.ukba.homeoffice.gov.uk/employers/preventingillegalworking/checking-brp


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The amount that the employer is required to paywill be determined on an individual basis, accordingto the circumstances o the case. A Code oPractice entitled Civil Penalties or Employers5sets out the actors relevant to determine the levelo penalty (see Appendix F).

You will have a statutory excuse against liability topay a civil penalty or employing an illegal migranti you check and copy certain original documentsbeore someone starts working or you. I theperson has a time limit on their stay in the UK, youwill also have to carry out repeat checks on theirdocuments at least once a year to retain the excuse.The processes you need to ollow are set out inmore detail in the next section o the guidance.

However, i you know that you are employing a

person who is not permitted to work, then youwillnot have an excuse under section 15(3)6, regardlesso whether you have carried out any documentchecks and you could be prosecuted under section21 o the 2006 Act or knowingly employing anillegal worker.

An employer commits a criminal oenceunder section 21 o the 2006 Act i he or sheknowingly employs an illegal migrant. Followingconviction on indictment, an employer may beliable to imprisonment or a term not exceedingtwo years, to an unlimited ne or to both. Onsummary conviction, an employer may be liable toimprisonment or a term not exceeding 6 months,to a ne not exceeding the statutory maximum7,or to both.

The UK Border Agency carries out regularoperations (oten in collaboration with otheragencies and partners such as Trading Standards,Health & Saety Executive and HMRC) to targetillegal working all over the country and will

investigate allegations by adopting an intelligence-led approach. The Agency adapts resources whereappropriate to carry out specic operations that willyield the greatest results, with the aim o removingthe most harmul people rom the UK rst. Anyperson ound to be working illegally is liable toprosecution and/or removal rom the UK.

Appendix Acontains questions and answers thatyou may nd useul about the law on preventingillegal working.

Appendix B provides inormation on employingasylum seekers, reugees and those grantedhumanitarian protection.

A number o countries have joined the EuropeanUnion on, or since 1 May 2004. The Governmentimposed a registration scheme on nationals rom

eight o these countries. These are Czech Republic,Estonia, Hungary, Latvia, Lithuania, Poland,Slovakia and Slovenia. Nationals rom these eightcountries are reerred to as A8 Nationals8. TheGovernment also imposed a requirement orauthorisation to work on nationals rom Romaniaand Bulgaria (reerred to as A2 nationals).

Appendix C gives you details about what youshould do i you wish to employ a national romthese countries.

Appendix D provides inormation onemploying students.

Appendix E has details o UK Governmentstamps and endorsements which demonstrate apersons immigration status.

Appendix F contains a ramework designedto assist the UK Border Agency with setting aproportionate sanction or penalty. The rameworkprovides a sliding scale with minimum andmaximum penalties. The ramework is provided orguidance purposes only as the actual amount willbe decided on a case by case basis. The rameworkis taken rom the Code o Practice which can beound on the UK Border Agency website:www.ukba.homeoce.gov.uk/sitecontent/documents/employersandsponsors/preventingillegalworking/

Appendix G provides example fowcharts to showthe process to ollow when certain documents are

presented to you.

THE POINTS-BASED SYSTEM

The points-based system (PBS) was introduced in2008. PBS is a fexible system that is able to adaptto the changing economic circumstances o theUK. Sponsorship is the keystone o PBS wherebythose employers who seek to bring migrants tothe UK take responsibility or them and ensurethat they have the intention and ability to meet theconditions o their visa.

5 This Code o Practice is issued by the Secretary o State under

section 19(1) o the 2006 Act and article 11 o the Immigration

(Restrictions on Employment) Order 2007 (S.I. 2007/3290)

6 See section 15 and section 21 o the 2006 Act.

7 The current statutory maximum is 5,000.

8 Under European Union law the Worker Registration Scheme

cannot continue beyond the end o April 2011. Please consult

the UKBA website or regular updates.
http://www.ukba.homeoffice.gov.uk/sitecontent/documents/employersandsponsors/preventingillegalworking/http://www.ukba.homeoffice.gov.uk/sitecontent/documents/employersandsponsors/preventingillegalworking/http://www.ukba.homeoffice.gov.uk/sitecontent/documents/employersandsponsors/preventingillegalworking/http://www.ukba.homeoffice.gov.uk/sitecontent/documents/employersandsponsors/preventingillegalworking/http://www.ukba.homeoffice.gov.uk/sitecontent/documents/employersandsponsors/preventingillegalworking/http://www.ukba.homeoffice.gov.uk/sitecontent/documents/employersandsponsors/preventingillegalworking/


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The key elements o the system are:

ve tiers under which a migrant can apply toenter/remain in the United Kingdom; and

awarding points to ensure that only those withthe attributes required by the UK are able to

come to the UK; and

sponsorship where those who benetmost rom immigration employers - takeresponsibility to ensure that those they recruithave the intention and ability to ull theconditions o their visa.

On 29 February 2008, sponsor licensingarrangements were introduced requiring employersand others who benet rom migration and wish to

act as sponsors o skilled or temporary migrants,to obtain a licence to do so. To be granted a licencethey must satisy the UK Border Agency that theyare a genuine organisation, and to retain the licencethey must demonstrate that they can meet all o theduties set out in the guidance or sponsors. Once alicence has been granted, the sponsor will be listedon a public Register o Sponsors on the UK BorderAgency website:www.ukba.homeoce.gov.uk/employers/points/sponsoringmigrants/registerosponsors/

Sponsors have a number o reporting duties. Theymust tell the UK Border Agency i, or example,a sponsored migrant ails to turn up or their rstday o work. They are also expected to report ithe migrants employment is terminated early, orexample i the migrant resigns or is dismissed.

A regional network o UK Border Agency visitingocers is responsible or ensuring that sponsorsare complying with their duties and may conductvisits to sponsor licence holders at any time. They

are also able to advise sponsors on all aspects osponsorship. Failure to comply with the sponsorduties may lead to a sponsors rating beingdowngraded rom A to B on the public register,and/or a reduction in the number o migrantsthey are allowed to sponsor or withdrawal o theirsponsor licence altogether.

SPONSORSHIP AND THE ILLEGAL WORKING

PROVISIONS

I, as a result o compliance inspections, sponsorsare ound to be employing illegal migrantworkers, they may be issued with a civil penalty,or prosecuted, in accordance with the provisions

described in this guidance.

Where a licensed sponsor is issued with a civilpenalty, the ollowing will apply:

I the penalty is set at the maximum level, thesponsor will have the licence withdrawn;

I the penalty is set at any other level, any actionthe UK Border Agency may take will depend onwhether the sponsor has paid the ne and/or

whether the ne was or a repeat oence.

For more details on the points-based system (PBS)and Sponsor Licensing, please go to:www.ukba.homeoce.gov.uk/employers/points
http://www.ukba.homeoffice.gov.uk/employers/points/sponsoringmigrants/registerofsponsors/http://www.ukba.homeoffice.gov.uk/employers/points/sponsoringmigrants/registerofsponsors/http://www.ukba.homeoffice.gov.uk/employers/pointshttp://www.ukba.homeoffice.gov.uk/employers/pointshttp://www.ukba.homeoffice.gov.uk/employers/points/sponsoringmigrants/registerofsponsors/http://www.ukba.homeoffice.gov.uk/employers/points/sponsoringmigrants/registerofsponsors/


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HOW TO CHECK THAT SOMEONE IS ENTITLEDTO WORK IN THE UK

This section explains the checks that youshould carry out in order to establish right towork in the UK and to have an excuse againstliability to pay a civil penalty or employing anillegal migrant worker.

You will only have the excuse i you check andcopy the documents beore the person starts

working or you.

I the person has time-limited leave to be in theUK, you will only have the excuse i you carry outcertain repeat checks at least once every 12 months.

It is important to note when reading this guidance

that you will not have an excuse i you knowingly

employ an illegal migrant worker, regardless o

any document checks you undertake beore or

during their employment.

This guidance will help you understand andrecognise what documents your prospective orexisting employees must provide or you to inspectand copy i you wish to establish/maintain astatutory excuse against liability or a civil penalty.It explains how to examine these documents. It alsoexplains how and when you should repeat thesechecks or people who have limits on their time inthe UK.

DOCUMENTS WHICH SHOW A PERSONSENTITLEMENT TO WORK

The documents that establish someonesentitlement to work are split into two lists.

List Adocuments show that the holder is notsubject to immigration control, or has norestrictions on their stay in the UK. I yourprospective employee produces a List A document(or one o the combinations o documentsspecied), they can work or you or an indeniteperiod. When you have carried out the appropriatechecks you will have an ongoing excuse againstliability to pay a civil penalty.

List B documents demonstrate that the personhas been granted leave to enter or remain inthe UK or a limited period o time and/or hasrestrictions on their ability to take employmentin the UK. I an individual provides documentsrom List B, you should carry out specieddocument checks beore the employment o theindividual begins and then carry out ollow-up

checks o the same kind at least once every 12months.You must carry out these repeat checksto have an excuse against liability to pay acivil penalty whenever List B documents are

provided. I, when rechecking the documents,an employee provides a document or documentsrom List A, no urther checks are necessary or theduration o that employment.

I at the time o the checks the prospectiveemployee (or employee when conducting repeatchecks) has an application to extend their leavein the UK outstanding, you should contact theEmployer Checking Service (see pages 12-13or the UK Border Agency website or details:www.ukba.homeoce.gov.uk/employers/preventingillegalworking/support/ecs/)to veriy this.

These arrangements or establishing an excuse onlyapply to employees who started working or you onor ater 29 February 2008. I you employed illegalmigrants between 27 January 1997 and 28 February

2008, the provisions o the 1996 Act will still apply previous guidance is available on the UK BorderAgency website:www.ukba.homeoce.gov.uk/sitecontent/documents/employersandsponsors/preventingillegalworking/
http://www.ukba.homeoffice.gov.uk/employers/preventingillegalworking/support/ecs/http://www.ukba.homeoffice.gov.uk/employers/preventingillegalworking/support/ecs/http://www.ukba.homeoffice.gov.uk/sitecontent/documents/employersandsponsors/preventingillegalworking/http://www.ukba.homeoffice.gov.uk/sitecontent/documents/employersandsponsors/preventingillegalworking/http://www.ukba.homeoffice.gov.uk/sitecontent/documents/employersandsponsors/preventingillegalworking/http://www.ukba.homeoffice.gov.uk/sitecontent/documents/employersandsponsors/preventingillegalworking/http://www.ukba.homeoffice.gov.uk/sitecontent/documents/employersandsponsors/preventingillegalworking/http://www.ukba.homeoffice.gov.uk/sitecontent/documents/employersandsponsors/preventingillegalworking/http://www.ukba.homeoffice.gov.uk/employers/preventingillegalworking/support/ecs/http://www.ukba.homeoffice.gov.uk/employers/preventingillegalworking/support/ecs/


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COMPLYING WITH THE DOCUMENT CHECKS

You should ollow Steps 1 3 belowor everyindividual you intend to employ. By doing this, youwill be able to establish a statutory excuse againstliability or a civil penalty.

Please note, that the provision o a properlydocumented National Insurance numberwill only

provide an excuse when presented in combinationwith one o the appropriate documents, as speciedin Lists A and B.

Step 1

Your prospective employee (or existing employee,i you are carrying out repeat checks) must provideto you:

Either

one o the single documents, or two o thedocuments in the specied combinations given,rom List A;

Or

one o the single documents, or two o thedocuments in the specied combinations given,rom List B.

You should only accept original documents.

Details o the documents included in List A andList B are provided later in the guidance.

Step 2

You must take all reasonable steps to check that thedocument is genuineand to satisy yoursel that yourprospective employee or current employee is the

person named in the document, and to check that thedocuments allow them to do the work in question.

For each document presented, you should:

check any photographs are consistent with theappearance o the employee; and

check any dates o birth listed are consistentacross documents and that you are satised thatthese correspond with the appearance o theemployee; and

check that the expiry dates o any limited leave toenter or remain in the UK have not passed; and

check any UK Government endorsements(stamps, visas, etc) to see i your prospective orcurrent employee is able to do the type o workyou are oering; and

satisy yoursel that the documents are genuine,have not been tampered with and belong to the

holder; and

i your employee gives you two documentswhich have dierent names, ask them or aurther document to explain the reason or this.The urther document could or example be amarriage certicate or a divorce decree absolute,a deed poll or statutory declaration.

Step 3

You must make a copy o the relevant page orpages o the document, in a ormat which cannotbe subsequently altered, or example, a photocopyor scan9. In the case o a passport or other traveldocument, the ollowing parts must be photocopiedor scanned:

the documents ront cover and any pagecontaining the holders personal details. Inparticular, you should copy any page thatprovides details o nationality, their photograph,date o birth, signature, date o expiry orbiometric details; and

any page containing UK Governmentendorsements indicating that the holder has anentitlement to be in the UK and is entitled toundertake the work in question.

Other documents should be copied in theirentirety, this includes both sides o a BiometricResidence Permit.

You should then keep a record o every documentyou have copied. The copies o the documentsshould be kept securely or the duration o thepersons employment and or a urther two yearsater they stop working or you. By doing this, theUK Border Agency will be able to check whetheryou have complied with the law or are liable to paya civil penalty i they detect anyone working illegallyor you.

9 Where an electronic copy is made o a document, it must be

made using a non-rewritable ormat, such as CD-R.


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WHAT TO DO IF THE PROSPECTIVE EMPLOYEE

IS NOT ENTITLED TO WORK

I you have carried out these checks and establishedthat your prospective employee is not permitted towork, then you are entitled to reuse employment tothat person. It is up to your prospective employee

to demonstrate to you that they are permitted to dothe work you are oering.

WHAT SHOULD I DO IF AN EMPLOYEE REFUSES

TO PRODUCE DOCUMENTS TO ESTABLISH

THEIR ONGOING ENTITLEMENT TO WORK IN

THE UK?

Each case will be dependent upon the terms o theemployment contract. You may wish to seek legaladvice and report the individual to the UK Border

Agency by calling the Sponsorship and EmployersHelpline on 0300 123 4699 who will signpost youto your local immigration team, or by sending ane-mail to: [email protected]

WHAT SHOULD I DO IF I COMPLETE A REPEAT

CHECK AND FIND THAT AN EMPLOYEE IS NO

LONGER ABLE TO WORK HERE?

I you have carried out repeat checks andestablished that your existing employee is no longerpermitted to work in the UK then you will becomeliable or a civil penalty and will be committing acriminal oence o knowingly employing an illegalworker i you continue to employ them.

With regard to potential dismissal o any employee,you may also wish to seek legal advice and reportthe individual to the UK Border Agency by callingthe Sponsorship and Employers Helpline on0300 123 4699 who will signpost you to your localimmigration team, or by sending an e-mail to:[email protected]

HOW DO I KNOW THAT A DOCUMENT IS GENUINE?

Examples o documents or endorsements likely tobe presented to you are set out in Lists A and B andAppendix E.

I you are presented with a alse travel document or

visa, you will only be required to pay a civil penaltyi the alsity is reasonably apparent. The alsitywould be considered to be reasonably apparent ian individual who is untrained in the identicationo alse documents, examining it careully, butbriefy and without the use o technological aids,could reasonably be expected to realise that thedocument in question is not genuine. Equally, wherea prospective employee presents a document and itis reasonably apparent that the person presentingthe document is not the person reerred to in that

document, then you may also be subject to legalaction, even i the document itsel is genuine.

You will not have an excuse against liability i youknew that the document, or documents, were alseor did not rightully belong to the holder.
mailto:[email protected]:[email protected]:[email protected]:[email protected]


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HOW TO AVOID RACIAL DISCRIMINATIONWHEN PREVENTING ILLEGAL WORKING

Many people rom ethnic minorities in this countryare British citizens, and many non-British citizensrom black and minority ethnic communities areentitled to work here. The Government has issueda Code o Practice10 to help employers comply withthe law on illegal working and to undertake checkswithout discriminating against individuals on thebasis o their race. You can download a copy rom

the UK Border Agency website:www.ukba.homeoce.gov.uk/employers

A breach o this Code o Practice may be used asevidence against you under race relations legislationbeore an employment tribunal. You will alsoplace yoursel at risk o liability or payment o acivil penalty or employing an illegal worker undersection 15 o the 2006 Act, as you may not have anexcuse in respect o all o your employees.

ENSURING YOUR DOCUMENT CHECKS

DO NOT DISCRIMINATE

The best way to make sure that you do notdiscriminate is to treatall job applicants inthe same way at each stage o yourrecruitment process.

You should ask all prospective employees to presenttheir documents beore they begin working oryou. You should not make presumptions about apersons right to work in the UK on the basis otheir background, appearance or accent.I you need urther advice on preventingdiscrimination in your recruitment checks, youshould consult your nearest oce o the Equalityand Human Rights Commission (EHRC).

The EHRC published a Code o Practice on RacialEquality in Employment that came into orce on6 April 2006. Contact details or the EHRC areprovided in the Further Inormation section.

10 Under section 23(1) o the 2006 Act
http://www.ukba.homeoffice.gov.uk/employingmigrantshttp://www.ukba.homeoffice.gov.uk/employingmigrants


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THE SPONSORSHIP ANDEMPLOYERS HELPLINE

I you require any urther inormation about whatyou have read in this guidance, you should call theSponsorship and Employers Helpline on0300 123 4699

The Helpline is open Monday to Friday, between9am and 5pm, except on Bank Holidays. It oersthe ollowing dedicated service or employers:

provides inormation or employers andeducation providers on sponsorship under thepoints-based system;

answers any general enquiries employers mayhave on preventing illegal working;

provides inormation and answers any generalqueries rom employers regarding the EmployerChecking Service and advises whether it wouldbe appropriate to carry out a check;

provides general inormation to employersabout employing migrants under the WorkerRegistration Scheme or workers rom eightEuropean Union countries (A8 nationals), and;

provides general inormation to employersabout employing migrants under theauthorisation scheme or Romanian andBulgarian nationals (A2 nationals).

The Sponsorship and Employers Helplinecannot provide you with employment advice:they can only provide general advice aboutthe laws relating to the prevention o illegal

working. I you have questions relating toemployment law, you may wish to seek legal advice.

Further inormation on the helpline can beound on our website at:www.ukba.homeoce.gov.uk/employers/preventingillegalworking/support/

ALLEGATIONS

You may also report any suspicions about youremployees entitlement to work in the UK or toundertake the work in question to the Sponsorshipand Employers Helpline. I this inormationis reported to the Sponsorship and EmployersHelpline beore an illegal working immigration visit

is made by a UK Border Agency enorcement team,any civil penalty that you may be liable or couldbe reduced. When reporting, you will be given acall reerence and this must be reerred to in anycorrespondence with the UK Border Agency.

THE EMPLOYER CHECKING SERVICE (ECS)

The Employer Checking Service exists to veriy anindividuals right to work in the UK where:

the individual has an outstanding application orappeal with the UK Border Agency;

the individual has presented an ApplicationRegistration Card (ARC) which states that theholder is entitled to work*; or

the individual has presented a Certicate oApplication issued to or or a amily member oan EEA or Swiss national which states that theholder is entitled to work*.

* In these cases the employer must verify the individualsright to work with the Employer Checking Service inorder to obtain the statutory excuse against payment ofa civil penalty.

To request a check you must complete a ormwhich can be ound at:www.ukba.homeoce.gov.uk/sitecontent/applicationorms/ecs/requestormOnce completed, the orm is to be e-mailed to:[email protected]

I you are not able to e-mail the orm, thehelpline will advise you what action to take on0300 123 4699.
http://www.ukba.homeoffice.gov.uk/employers/preventingillegalworking/support/http://www.ukba.homeoffice.gov.uk/employers/preventingillegalworking/support/http://www.ukba.homeoffice.gov.uk/sitecontent/applicationforms/ecs/requestformhttp://www.ukba.homeoffice.gov.uk/sitecontent/applicationforms/ecs/requestformmailto:[email protected]:[email protected]://www.ukba.homeoffice.gov.uk/sitecontent/applicationforms/ecs/requestformhttp://www.ukba.homeoffice.gov.uk/sitecontent/applicationforms/ecs/requestformhttp://www.ukba.homeoffice.gov.uk/employers/preventingillegalworking/support/http://www.ukba.homeoffice.gov.uk/employers/preventingillegalworking/support/


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It is the employers responsibility to inorm theprospective employee or existing employee thatthey may undertake a check on them with the UKBorder Agency. To have an excuse against paymento a civil penalty, the records and documentsrelating to the check should be retained orexamination and be produced upon request.

I you have questions relating to employment law,you may wish to seek legal advice.


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WHAT LEVEL OF CIVIL PENALTY MIGHTI HAVE TO PAY?

The system o civil penalties is designed toencourage employers to comply with theirlegal obligations and to cooperate with the UKBorder Agency without targeting those who haveunintentionally been non-compliant in operatingtheir recruitment and employment practices.

REPORTING SUSPECTED ILLEGAL WORKERS TO

THE UK BORDER AGENCY

I you report any suspicions about your employeesentitlement to work or you to the UK BorderAgency a sum may be deducted rom the amounto penalty due or those workers. This inormationmust have been reported to the Sponsorship andEmployers Helpline on 0300 123 4699 beoreany visit is made known to you by the UK BorderAgency. When reporting, you will be given aunique reerence number and this must be reerredto in any uture correspondence with the UKBorder Agency.

COOPERATION WITH THE UK BORDER

AGENCY IN CONDUCTING AN ILLEGAL

WORKING OPERATION

The penalty due or each worker can also bereduced where you have co-operated with theUK Border Agency in any investigation, or inany consequent operation to detect and detainillegal migrant workers within your workorce.

This may include, or example, providing accessto employment records and/or premises to UKBorder Agency ocials on request.

The level o any reduction made will depend onwhether you have been ound to be employingillegal migrant workers within the previous threeyears. The sliding scale shown in Appendix F alsoallows or a warning letter to be issued instead o acivil penalty.

PREVIOUS PENALTIES/WARNINGS

When considering whether a higher level o penaltyshould apply to an employer who has been visitedand ound to have employed illegal migrantsbeore, previous penalties or warnings will not beconsidered i they were issued more than threeyears beore the date o the new penalty. Where an

employer is revisited, and has received a penalty orwarning within three years o the current penalty,those penalties and warnings will be counted incalculating the level o the current penalty.

MULTIPLE PREMISES

A company with multiple premises whererecruitment is devolved to each site will not beliable to a cumulative penalty i illegal workersare detected at dierent sites, unless this can beattributed to a general ailure in the companyscentrally set recruitment practices.


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OBJECTIONS AND APPEALS TO THECIVIL PENALTY

I you are ound with illegal migrant workersin your workorce, you may be served with aNotication o Potential Liability (NOPL) or acivil penalty but a decision on whether a penaltyis appropriate and, i so, how much it should bewill not be taken immediately. The details o eachcase will be passed to the Civil Penalty ComplianceTeam (CPCT) or consideration and there are a

number o actors that will need to be consideredbeore the level o any penalty is decided. TheCPCT will subsequently notiy you o any actionto be taken.

I the CPCT decides that there is no action to betaken, you will be sent written notication o thisdecision. The case will then be closed. However, iit is decided that you are liable or a penalty, you willbe advised by the service o a Notice o Liabilityor a Civil Penalty (NOL) which will be your rstormal notication that a penalty is to be levied.This notice will state:

why you are liable;

the amount payable;

when it must be paid by;

how the penalty must be paid;

how you may object to the penalty; and

how the penalty may be enorced.

OBJECTIONS

On receipt o the penalty, you will have 28 daysrom the date specifed in the notice to pay thepenalty or to object. An objection must be made inwriting and submitted on a IWCP-4 pro orma citingreasons or the objection, at the ollowing address:

Civil Penalty Compliance TeamPO Box 99ManchesterM90 3WW

Tel: 0161 261 1122

The IWCP-4 pro orma can be requested by phoneon 0161 261 1122 or downloaded rom the UKBorder Agency website:www.ukba.homeoce.gov.uk/sitecontent/applicationorms/sponsors/illegalworking

A short extension may be approved or thesubmission o your objection, provided that youcontact the CPCT promptly and you can showreasonable cause or the delay. Any objectionsreceived ater the 28 day period (without prioragreement)will not be considered.

REASONS FOR OBJECTION

Your objection must set out your grounds or objecting

to the penalty. You may object on the grounds that:

you are not liable to pay the penalty; or

you have a statutory excuse; or

the level o penalty is too high.

The CPCT will review the evidence again in thelight o your objection. The CPCT may considerany additional evidence provided o an employersnancial means, including evidence in respect othe eect o the civil penalty on the viability o theemployers business.
http://www.ukba.homeoffice.gov.uk/sitecontent/applicationforms/sponsors/illegalworkinghttp://www.ukba.homeoffice.gov.uk/sitecontent/applicationforms/sponsors/illegalworkinghttp://www.ukba.homeoffice.gov.uk/sitecontent/applicationforms/sponsors/illegalworkinghttp://www.ukba.homeoffice.gov.uk/sitecontent/applicationforms/sponsors/illegalworking


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You should also indicate in your objection whetheryou have also lodged an appeal. You may wish torst exercise your right o objection and await theoutcome beore exercising your right to appeal.

Under section 16(4) o the 2006 Act the Secretaryo State, when considering an objection, may decide

to cancel, reduce, increase, or to take no urtheraction on the penalty.

APPEALS

When a penalty is issued, an employer can appeal tothe courts on the grounds that:

they are not liable to pay the penalty; or

they have a statutory excuse; or

the level o penalty is too high.

On receipt o the penalty, an employer will have28 days rom the specifed date to appeal tothe court. I an employer chooses to lodge anobjection to the penalty rst, the employer willhave 28 days rom the date specifed in thenotice o determination o the objection toappeal to the court.

I the employer is unsuccessul at the appeal theymay also be liable or the UK Border Agencys costsin preparing or and attending the hearing.


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FURTHER INFORMATION

PREVIOUS PUBLICATIONS BY THE HOME

OFFICE, THE BORDER AND IMMIGRATION

AGENCY AND THE UK BORDER AGENCY

Prevention of illegal working: Guidance for employers:Asylum and Immigration Act 1996, Section 8 Home Oce, 1996.

The Immigration and Asylum Act 1999 - Section 22Code of Practice: For all employers on the avoidance ofrace discrimination in recruitment practice while seekingto prevent illegal working Home Oce, 2001.

Prevention of illegal working: Proposed changes todocument list under section 8 of the Asylum andImmigration Act 1996 Home Oce, 2003.

Breakdown summary and statistical analysis ofresponses to the consultation on proposed changes todocument list under section 8 of the Asylum andImmigration Act 1996 Home Oce, 2004.

Changes to the law on preventing illegal working: shortguidance for United Kingdom employers HomeOce, 2004.

Comprehensive guidance for United Kingdom employerson changes to the law on preventing illegal working Home Oce, 2004.

Illegal working taskforce: Regulatory Impact

Assessment for Immigration, Asylum and NationalityBill Home Oce, 2005.

Prevention of illegal working. Immigration, Asylumand Nationality Act 2006: Consultation on theimplementation of new powers to prevent illegal migrantworking in the UK Border and ImmigrationAgency, 2007.

Shutting down illegal working in the UK. Illegalworking action plan update and next steps of theconsultation on the implementation of new powers to

prevent illegal migrant working in the UK Borderand Immigration Agency, 2007.

Prevention of illegal working. Immigration, Asylumand Nationality Act 2006: Civil Penalties forEmployers Code of Practice Border andImmigration Agency, 2008.

Prevention of illegal working. Immigration, Asylumand Nationality Act 2006: Guidance for Employerson the avoidance of unlawful discrimination

in employment practice while seeking to preventillegal working. Code of Practice Border andImmigration Agency, 2008.

Prevention of illegal working. Immigration, Asylumand Nationality Act 2006: Comprehensive Guidance

for Employers on Preventing Illegal Working Borderand Immigration Agency 2008.

Prevention of illegal working. Immigration, Asylum andNationality Act 2006: Summary guidance for employers second edition UK Border Agency, 2009.

Preventing Illegal Migrant Working in the UK: WhatEmployers Need to Know UK Border Agency, 2010.

Guidance for Employers on Preventing IllegalWorking: Asylum Seekers and Refugees UK BorderAgency, 2010.

Documents provided by the Home Oce, theBorder and Immigration Agency and the UKBorder Agency are available rom the UK Border

Agency website at:www.ukba.homeoce.gov.uk/employers/preventingillegalworking/

I you have any questions about these guidancedocuments, you can telephone the Sponsorship andEmployers Helpline on 0300 123 4699.
http://www.ukba.homeoffice.gov.uk/employers/preventingillegalworking/http://www.ukba.homeoffice.gov.uk/employers/preventingillegalworking/http://www.ukba.homeoffice.gov.uk/employers/preventingillegalworking/http://www.ukba.homeoffice.gov.uk/employers/preventingillegalworking/


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POINTS-BASED SYSTEM

You can nd urther details o the points-basedsystem and Sponsorship on the UK Border Agencywebsite at:www.ukba.homeoce.gov.uk/employers/points/

IMMIGRATION ISSUES

For written advice concerning immigration issuesyou should contact:

The UK Border AgencyLunar House40 Wellesley RoadCroydon, CR9 2BY

For immigration telephone enquiries please

contact the Immigration Enquiry Bureau (IEB) on0870 606 7766. I callers who are hard o hearinghave access to a Minicom you can contact themon 0800 389 8289. Please note that there is noprovision or verbal assistance on this line.

The IEB opening hours are Monday to Thursday9:00am - 16.45pm and Friday rom 9:00am -16.30pm. It is oten easier to get through later inthe day. E-mail enquiries should be directed to:[email protected]

Please note that the IEB cannot answerquestions on individual cases via e-mail or dataprotection reasons.

Application orms and urther inormation on theworker registration and authorisation schemes orEEA nationals can be obtained rom:www.ukba.homeoce.gov.uk/workingintheuk/eea/

The leafetEmploying a Bulgarian or RomanianNational in the UKguidance provides urther

inormation to employers on obtainingauthorisation or a Bulgarian or Romanian worker.This can be viewed at:www.ukba.homeoce.gov.uk/sitecontent/applicationorms/bulgariaromania/employing.

I you have any queries with regard to this orrequire inormation on work permits pleasecall the Work permits (beore November 2008)and Accession State customer contact centreon 0114 207 4074 (open Monday to Friday9:00 - 17:00).

Details on visa and entry clearance requirementsor certain nationals are available at the UK Visaswebsite:www.ukvisas.gov.uk

Her Majestys Revenue and Customs (HMRC) hasa dedicated website or employers, giving practicaladvice on a range o issues and areaso employment legislation available at:www.businesslink.gov.uk

You should remember that any EEA national

you employ will be subject to the same UK taxand National Insurance legislation as any otheremployee. The HM Revenue and Customs booklet:CWG2 Employer Further Guide to PAYE andNICs will provide you with more details and youcan order this by calling08457 646 646. I you areconcerned about your tax or National Insuranceposition and need help putting your aairs in order,you should call the HM Revenue and CustomsTax and Benets Condential Helpline on0845 608 6000.

DETAILS ABOUT PASSPORTS AND IDENTITY

DOCUMENTS

Inormation on national passports and identitycards rom European Union countries, Icelandand Norway can be ound on the Council o theEuropean Union website via:www.consilium.europa.eu/prado

BIRTH AND ADOPTION CERTIFICATES

To provide the required specied combination odocuments, i an individual does not have a copyo their ull birth certicate, a replacement birthcerticate may be obtained or a ee rom the localregistrar in the district where they were born, oralternatively rom:

General Register Ofce (England and Wales)Smedley HydroTraalgar RoadSouthport

PR8 2HH

www.gro.gov.uk/gro/content/certicates/

General Register Ofce (N. Ireland)Oxord House49 -55 Chichester StreetBelast BT1 4HL

www.groni.gov.uk

General Register Ofce (Scotland)New Register HouseEdinburgh EH1 3YT

www.gro-scotland.gov.uk
http://www.ukba.homeoffice.gov.uk/employers/points/mailto:[email protected]://www.ukba.homeoffice.gov.uk/workingintheuk/eea/http://www.ukba.homeoffice.gov.uk/sitecontent/applicationforms/bulgariaromania/employinghttp://www.ukba.homeoffice.gov.uk/sitecontent/applicationforms/bulgariaromania/employinghttp://www.ukvisas.gov.uk/http://www.businesslink.gov.uk/http://www.consilium.europa.eu/pradohttp://www.gro.gov.uk/gro/content/certificates/http://www.groni.gov.uk/http://www.gro-scotland.gov.uk/http://www.gro-scotland.gov.uk/http://www.groni.gov.uk/http://www.gro.gov.uk/gro/content/certificates/http://www.consilium.europa.eu/pradohttp://www.businesslink.gov.uk/http://www.ukvisas.gov.uk/http://www.ukba.homeoffice.gov.uk/sitecontent/applicationforms/bulgariaromania/employinghttp://www.ukba.homeoffice.gov.uk/sitecontent/applicationforms/bulgariaromania/employinghttp://www.ukba.homeoffice.gov.uk/workingintheuk/eea/mailto:[email protected]://www.ukba.homeoffice.gov.uk/employers/points/


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I an adopted person does not have a copy o theirull adoption certicate, they can obtain a copyrom the same General Register Oces.

For any other inormation about obtaining birth,death or marriage certicates relating to events inEngland and Wales, you can contact the General

Register Oce (GRO) on 0845 603 7788 (8amto 8pm Monday to Friday. Saturday 9am to 4pm).Calls are charged at the cost o a local call. Pleasenote your call may be recorded or training andmonitoring purposes.

This telephone number is Typetalk enabled.This means that people with hearing dicultiescan communicate with the GRO via the NationalTelephone Relay Service who set up a link with theGRO and act as an intermediary on their behal.

Text: 18001 (ollowed by) 0845 603 7788

EHRC PUBLICATIONS AND CONTACT DETAILS

Racial Equality and the Smaller Business: A practical

guide(CD-ROM) The Commission or RacialEquality, 2004.

The Statutory Code of Practice on Racial Equalityin Employment The Commission or RacialEquality, 2006.

The Racial Equality and the Smaller Business: Apractical guide CD-ROM is available in PDF, orRTF large print ormat rom the Equality andHuman Rights Commission (EHRC) website at:www.equalityhumanrights.com

The Statutory Code o practice on Racial Equalityin Employment was produced by the Commissionor Racial Equality (CRE) in April 2006 andcontains detailed and practical guidance to helpemployers to comply with the Race Relations Act

1976. An electronic copy o the document can bedownloaded rom the Equality and Human RightsCommission (EHRC) website at:www.equalityhumanrights.com

Please address any enquiries about the law onthe prevention o illegal working to the UKBorder Agency through the contact detailsgiven, and not to the EHRC.

The EHRC can advise on matters relating tothe law on discrimination, contact details or thenational helplines are listed as ollows:

England: 0845 604 6610 Textphone: 0845 603 6620

Scotland: 0845 604 5510 Textphone: 0845 604 5520

Wales: 0845 604 8810 Textphone: 0845 604 8820

The Equality Commission or Northern IrelandEquality Commission or Northern IrelandEquality House7-9 Shatesbury SquareBelast, BT2 7DP

Tel: 028 90 500 600Fax: 028 90 248687Text phone: 028 90 500589

Email: [email protected]
http://www.equalityhumanrights.com/http://www.equalityhumanrights.com/mailto:[email protected]:[email protected]://www.equalityhumanrights.com/http://www.equalityhumanrights.com/


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LIST ADOCUMENTS WHICH SHOW AN ONGOINGRIGHT TO WORK

DOCUMENTS

Any o the documents, or specied combinationo documents, described in List A demonstrate thatthe holder is entitled to work in the UK and willprovide you with an excuse rom liability to pay acivil penalty i you ollow all o the steps set out onpages 8-10.

I your employee presents a document or speciedcombination o documents rom List A, there is noneed to ask or any other documents.


You will not have an excuse against liabilityto pay a civil penalty i you know that theindividual is not entitled to work or you.

Validity o Documents

The UK Border Agency recommends that

employers check the in-date passports/travel

documents o their prospective employees.

However, i the prospective employee does not

have an in-date passport/travel document

showing their permission to remain in the

United Kingdom11, you can accept evidence opermission to remain in the UK and thereore

right to work - in an expired passport or travel

document. It is crucial that you check that the

stamp or endorsement in the passport/travel

document continues to allow the person to work

by virtue o status (ie the persons stay is

indefnite) or date (the end o the persons

permitted stay has not expired).

Employers are advised to see any prospective

employees current passport/travel document. Iyou have to rely solely on an expired passport/

travel document containing evidence o the

prospective employees permission to remain

in the UK, you must take particular care when

examining photographs and comparing these

with the current appearance o the prospective

employee. Also, you should have regard to the

date o birth on the expired document and satisy

yoursel that this is consistent with the current

appearance o the prospective employee.

N.B. See page 22 with regard to the validation o

a Certifcate o Entitlement to the Right o Abode

this MUST be endorsed in a valid passport.

11 Policy change in relation to Indefnite Leave to Remain (ILR)

eective rom 4 August 2010 and in relation to Limited Leave to

Remain, policy change eective rom 1 November 2010


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1. A passport showing that the holder, or a

person named in the passport as the child o

the holder, is a British citizen or a citizen o

the United Kingdom and Colonies having the

right o abode in the United Kingdom.

Only the ollowing passports are acceptable:


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Question 18 in Appendix A contains details ocertain other types o British passport that donot provide evidence o a persons entitlementto work as they do not conrm that the holderis a British citizen.

A passport stating that the holder is a citizen

o the United Kingdom and Colonies will onlybe acceptable i it includes the words: holderhas the right o abode in the United Kingdom.

Certain Commonwealth citizens and citizenswith dual nationality have the right o abodein the United Kingdom and do not have anyimmigration restrictions placed on the workthey can do here.

You can check that someone has the right o

abode by looking or this sticker below in theirnational passport.

From 24 June 2008, the ollowing documenthas been issued by the UK Border Agency tothose people who apply or their Certicate oEntitlement to the Right o Abode in the UK.

The Certicate o Entitlement to the Righto Abode must be in avalid passport. TheImmigration (Certicate o Entitlement tothe Right o Abode in the UK) Regulations2006 were introduced to prevent raudulentuse o Right o Abode certicates, section 8o the regulations provides that a certicateo entitlement shall cease to have eect on theexpiry o the passport or travel document towhich it is axed.


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2. A passport or national identity card showing

that the holder, or a person named in the

passport as the child o the holder, is a

national o a European Economic Area

country or Switzerland.

The majority o nationals rom European

Economic Area (EEA) countries andSwitzerland are ree to live and work in the UK.However special provisions relating to accessto the UK labour market apply to those romRomania and Bulgaria (A2 nationals) as well asthose rom the Eastern European Countriesthat joined the European Union in 2004 (A8nationals). You will be able to nd more detailsabout employing these nationals, and a list oEEA countries, in Appendix C.

3. A residence permit, registration certifcate

or document certiying or indicating

permanent residence issued by the Home

Ofce, the Border and Immigration Agency,

or the UK Border Agency to a national o

a European Economic Area country

or Switzerland.

For nationals rom EEA countries, thisdocument consists o a blue permit carrying aphotograph and personal details o the holder.Nationals rom EEA countries can obtain aresidence permit rom the UK Border Agency,as shown here:


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Swiss nationals receive a similar documentin the orm o a pink residence permit, aspictured above.


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4. A permanent residence card or document

issued by the Home Ofce, the Border

and Immigration Agency, or the UK Border

Agency to the amily member o a national

o a European Economic Area country or

Switzerland.

When nationals rom EEA countries andSwitzerland reside in the UK, their immediateamily members rom outside the EEA orSwitzerland may gain the same rights to enteror remain here and work here reely. However,the EEA national in question must be lawullyresiding in the UK or their amily member tohave and maintain these rights.

See page 35 or images.

5. A passport or other travel document

endorsed to show that the holder is exempt

rom immigration control, is allowed to stay

indefnitely in the United Kingdom, has the

right o abode in the United Kingdom, or has

no time limit on their stay in the

United Kingdom.

Appendix E contains details o the UKGovernment stamps and endorsements whichdemonstrate a persons immigration status.


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DOCUMENT COMBINATIONS

These documents will only give you an excuseagainst liability to pay a civil penalty i they arepresented in the combinations specied.

First combination

An ocial document issued by a previous employeror Government agency, e.g. HM Revenue andCustoms (ormerly the Inland Revenue), theDepartment or Work and Pensions, Jobcentre Plus,the Training and Employment Agency (Northern

Ireland) or the Northern Ireland Social SecurityAgency, which contains the National Insurancenumber and name o the person.

A P45, P60, National Insurance number card,or a letter rom a Government agency may beacceptable to demonstrate a persons NationalInsurance number in order to have this part oyour excuse.


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Along with checking and copying a document

giving the persons National Insurance number

and name, you must also check and copy ONE o

the ollowing documents listed in sections 6- 12:

6. An Immigration Status Document issued

by the Home Ofce, the Border and

Immigration Agency, or the UK Border

Agency to the holder with an endorsement

indicating that the person named in it is

allowed to stay indefnitely in the United

Kingdom or has no time limit on their stay

in the United Kingdom

In December 2003, the Home Oce began tophase in the issuing o the Immigration StatusDocument (ISD) to some new applicantsgranted Indenite Leave to Enter or Remain inthe United Kingdom.

A valid ISD contains a United KingdomResidence Permit endorsement (see AppendixE or urther inormation). The ISD also has a

section providing urther details o the holdersstatus and personal details. You should copyall o the separate parts o the ISD, which arepictured below.


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OR

7. A ull birth certifcate issued in the United

Kingdom which includes the name(s) o at

least one o the holders parents

You should accept only the original o a

ull UK birth certicate, which must includethe names o the holder and at least one otheir parents.

In some cases, a ull birth certicate will onlyprovide details o one o the holders parents,and this will also be acceptable as part o yourexcuse. Short birth certicates which do nothave details o either o the holders parentswill not establish this part o your excuse.

OR

8. A ull adoption certifcate issued in the United

Kingdom which includes the name(s) o at

least one o the holders adoptive parents

You should accept only the original o a ull

UK adoption certicate, which must includethe names o the holder and at least one o theadoptive parents.


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OR

9. A birth certifcate issued in the Channel

Islands, the Isle o Man or Ireland

Nationals rom the Channel Islands, the Isle o

Man and Ireland (also known as the CommonTravel Area) have no immigration restrictionsplaced on the type o employment they cantake here. You can check their birth certicatesto orm part o your excuse.


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OR

10. An adoption certifcate issued in the

Channel Islands, the Isle o Man or Ireland

Nationals rom the Common Travel Area haveno immigration restrictions placed on the typeo employment they can take here.

OR

11. A certifcate o registration or naturalisation

as a British citizen

You should check that the A4 certicatesdescribe the holder as a British citizen as

indicated below.

These documents were replaced by newcerticates o registration and naturalisation inFebruary 2004 and are shown below.


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OR

12. A letter issued by the Home Ofce, the

Border and Immigration Agency, or the UK

Border Agency to the holder which indicates

that the person named in it is allowed to

stay indefnitely in the United Kingdom.

Until March 2004, individuals grantedindenite leave to enter or remain wereusually issued with a Home Oce statusletter, pictured below.

These letters clearly state that the holder is ableto take up employment.


32/8332


LIST BDOCUMENTS WHICH SHOW A RIGHT TO WORKFOR UP TO 12 MONTHS

DOCUMENTS

Any o the documents, or specied combination odocuments, in List B, can demonstrate that a personis entitled to work in the UK or a limited period.They will provide you with an excuse againstliability to pay a civil penalty or up to 12 monthsrom the date on which you carry out the checks, i

you ollow all o the steps set out on pages 8-10.

I your employee presents a document or speciedcombination o documents rom List B, there is noneed to ask or any documents contained in List A.


You will not have an excuse against liability topay a civil penalty i you know that the individualis not entitled to do the work or you.

Validity o Documents

The UK Border Agency recommends that

employers check the in-date passports/travel

documents o their prospective employees.

However, i the prospective employee does

not have an in-date passport/travel document

showing their permission to remain in the United

Kingdom12, you can accept evidence opermission to remain in the UK and thereore

right to work - in an expired passport or travel

document. It is crucial that you check that the

stamp or endorsement in the passport/travel

document continues to allow the person to work

by virtue o status (ie the persons stay is

indefnite) or date (the end o the persons

permitted stay has not expired).

Employers are advised to see any prospective

employees current passport/travel document. Iyou have to rely solely on an expired passport/

travel document containing evidence o the

prospective employees permission to remain

in the UK, you must take particular care when

examining photographs and comparing these

with the current appearance o the prospective

employee. Also, you should have regard to the

date o birth on the expired document and satisy

yoursel that this is consistent with the current

appearance o the prospective employee.

NB See page 22 with regard to the validation o

a Certifcate o Entitlement to the Right o Abode

this MUST be endorsed in a valid passport

12 Policy change in relation to Indefnite Leave to Remain (ILR)

eective rom 4 August 2010 and in relation to Limited Leave to

Remain, policy change eective rom 1 November 2010


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1. A passport or travel document endorsed to

show that the holder is allowed to stay in

the United Kingdom and is allowed to do the

type o work in question.

Those nationals rom outside the EuropeanEconomic Area (the EEA) who are subject

to immigration control and who have beengiven current leave to work here will be ableto demonstrate this by producing a UKGovernment stamp or endorsement in theirnational passport or travel document. Whenthe Government grants a person limited leaveto enter or remain it may place restrictions onthe length or type o work a person can do hereaccording to their immigration status.


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2. A Biometric Residence Permit issued by

the UK Border Agency to the holder which

indicates that the person named in it can

stay in the United Kingdom and is allowed to

do the work in question.

Further inormation is available regarding theBiometric Residence Permit on the UK BorderAgency website at:www.ukba.homeoce.gov.uk/employers/preventingillegalworking/

9 10 11 12 13 141 2 3 4 5 6 7 8

1. Holders digital image2. Holders name3. Valid until the date the card expires. This

date is at the end o the time the holderis allowed to stay; or ve or 10 years ithe holder has been given permission tosettle in the United Kingdom (known asindenite leave to remain)

4. Place and date o issue this is the UKollowed by the date the card was issued

5. Type o permit- this is the immigration categorythe holder is in (or example, STUDENT)

6. Remarks these are the immigrationentitlements or the length o the holders stay,and may continue on the back o the card

7. ZU1234567 unique card number8. Holders signature9. Biometric chip10. Holders gender11. Holders date and place o birth12. Holders nationality13. Remarks this is a continuation o

immigration entitlements or the length otime o the holders stay (see 6 above)

14. Machine readable zone (MRZ) this areaallows inormation printed on the card tobe read quickly by machine

The cards design is set by European Union (EU) regulation. It is a standard credit card size(86mm x 54mm) and will look similar to identity cards issued by other EU countries. The card ismade rom polycarbonate plastic and contains a chip to make it more secure against orgery and abuse.
http://www.ukba.homeoffice.gov.uk/employers/preventingillegalworking/checking-brphttp://www.ukba.homeoffice.gov.uk/employers/preventingillegalworking/checking-brphttp://www.ukba.homeoffice.gov.uk/employers/preventingillegalworking/checking-brphttp://www.ukba.homeoffice.gov.uk/employers/preventingillegalworking/checking-brp


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3. A residence card or document issued by the

Home Ofce, the Border and Immigration

Agency, or the UK Border Agency to a

amily member o a national o a European

Economic Area country or Switzerland.


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36

DOCUMENT COMBINATIONS

These documents will only give you an excuseagainst liability to pay a civil penalty i they arepresented in the combinations specied.

First combination

4. A work permit13 or other approval to take

employment issued by the Home Ofce, the


Border Agency

I you made an application or a work permitbeore your employee arrived in the UK, thenthe Border and Immigration Agency or the UKBorder Agency will have issued you directlywith a work permit as shown here:

13 Prior to the introduction o the points-based system, UK

employers wishing to employ non-EU migrants were required to

obtain a Work Permit or the migrant. Once the Work Permit had

been obtained then the individual migrant was then required to

apply or leave to enter or remain in line with the permit.


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I you made an application while youremployee was in the UK, then the Borderand Immigration Agency or the UK BorderAgency may have notied you with a letter opermission. This will be in the orm o theletter shown here:

I you are already an approved sponsor onthe points-based system (PBS), you willhave a record or the migrant worker on thesponsorship management system which showsthe Certicate o Sponsorship number.


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Along with the actual permission rom the

Border and Immigration Agency or the UK

Border Agency or the person to take the

employment in question, you must also ensure

that the work permit holder or PBS applicant14

has been given leave to enter or remain in the

UK. This will be in the orm o:

14 PBS applicants in Tiers 1, 2, 4 and 5 are entitled to work.

However, there are restrictions on the type o work they can

undertake depending on which tier and category they have been

granted leave in (Tier 1 migrants have no restrictions on the type

o work they can undertake)

i. a passport or another travel document

endorsed to show the holder is allowed to

stay in the United Kingdom and is allowed to

do the work in question

Most work permit or PBS applicants will havebeen granted permission to remain in their

passports stating that they are able to work asauthorised by the Secretary o State.

Further details o the endorsements or inkstamps can be ound in Appendix E.


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OR

ii. a letter issued by the Home Ofce, the

Border and Immigration Agency, or the

UK Border Agency to the holder or the

employer or prospective employer

confrming the same

A small number o work permit holders orPBS applicants may not have a national traveldocument and instead will be issued with anImmigration Status Document endorsed witha United Kingdom Residence Permit, asshown here.

This Residence Permit clearly shows that the

individual has Limited Leave to Remain andwhether there are any work conditions.


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Second combination

The ollowing documents (Certicate oApplication and Application Registration Card)will only give you an excuse against liability topay a civil penalty i they have been checked bythe UK Border Agency Employer Checking

Service. Details o the Employer CheckingService are to be ound on pages12-13 and on theUK Border Agency website at:www.ukba.homeoce.gov.uk/employingmigrants

5. A Certifcate o Application issued by the

Home Ofce, the Border and Immigration

Agency, or the UK Border Agency to or or a

amily member o a national o a European

Economic Area country or Switzerland

stating that the holder is permitted to take

employment which is less than 6 months old

Family members o nationals rom EEAcountries and Switzerland may apply orresidence documents, such as a residence card,which demonstrate entitlement to work in theUK. Under European legislation, many are alsoentitled to engage in employment whilst theseapplications are under consideration and beoreresidence documents have been issued by theUK Border Agency. The UK Border Agencywill provide such applicants with an initial letter

o acknowledgment.

Upon positive verication o the letter oacknowledgement, the UK Border Agencywill provide a new document to the individualwhich will clearly state that the person namedhas an entitlement to work in the UK.
http://www.ukba.homeoffice.gov.uk/employingmigrantshttp://www.ukba.homeoffice.gov.uk/employingmigrants


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OR

6. An Application Registration Card (ARC)

issued by the Home Ofce, the Border

and Immigration Agency or the UK Border

Agency stating that the holder is ALLOWED

TO WORK or EMPLOYMENT PERMITTED.

Since May 2004, you have only been ableto establish that an asylum seeker haspermission to work by checking a HomeOce-issued Application Registration Card(ARC). I the holder is permitted to work,it will state ALLOWED TO WORK orEMPLOYMENT PERMITTED on bothsides o their card as indicated below.

I you are presented with an ARC whichstates FORBIDDEN FROM TAKINGEMPLOYMENT or EMPLOYMENTPROHIBITED on either side, as shown onpage 77, then you may be liable or payment o

a civil penalty or employing an illegal migrantworker, or commit a criminal oence oknowingly employing an illegal migrant worker,unless the person can otherwise demonstratetheir entitlement to work in the UK.

You should not accept a StandardAcknowledgement Letter (SAL) orImmigration Service Letter (IS96W) asevidence that an asylum seeker has permissionto work. I an asylum seeker presents these

documents to you, reer them to the HomeOce on 0151 213 2174 or urther advice onhow they can obtain an ARC.

You should be aware that some asylum seekersor ailed asylum seekers may have restrictionson the type o work they can undertake. Pleasesee Appendix B or more details.


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Third combination

A document issued by a previous employer or

Government agency, e.g. Inland Revenue (now

HM Revenue and Customs), the Department or

Work and Pensions, Jobcentre Plus, the Training

and Employment Agency (Northern Ireland) or

the Northern Ireland Social Security Agency,which contains the National Insurance number

and name o the holder.

A P45, P60, National Insurance number card, ora letter rom a Government agency is acceptableevidence o a persons National Insurance number.

Along with checking and copying a documentgiving the persons National Insurance number,you must also check and copy ONLY ONE o theollowing documents listed at numbers 7 - 8:

7. An Immigration Status Document issued by

the Home Ofce, the Border and Immigration

Agency or the UK Border Agency to the

holder with an endorsement indicating

that the person named in it can stay in the

United Kingdom, and is allowed to do the

type o work in question.

From March 2004, the Home Oce has issuedImmigration Status Documents (ISD) to someapplicants given limited leave to enter or remainin the United Kingdom.

The ISD contains a United Kingdom ResidencePermit endorsement which clearly states whatpermission to remain in the UK the holderhas. The ISD also states whether the individualis ree to work in the UK and whether the

entitlement to work is subject to any conditions.You should copy and retain the copy o all othe parts which are pictured below.

The Residence Permit clearly shows that theindividual has Limited Leave to Remain.


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OR

8. A letter issued by the Home Ofce, the


Border Agency to the holder or the employer

or prospective employer, which indicates

that the person named in it can stay in the

United Kingdom and is allowed to do thework in question.

All o the letters pictured indicate that anapplicant has been granted a orm o leave bythe Home Oce and that they have permissionto stay in the UK or a limited period o time.Immigration restrictions may however havebeen placed on the type o work they can dohere, which you should check careully.

In order to have this part o your excuse, theletter must grant the holder leave to enter orremain in the UK. You should also check anystamps on this letter careully to see i theholder is permitted to take the type o workthat you are oering. Appendix E has urtherexamples o the types o endorsements and inkstamps and what employment conditions havebeen imposed.


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APPENDIX ASOME QUESTIONS YOU MIGHT HAVE

Establishing an excuse against liability or

payment o a civil penalty

Q1 Why should I carry out document checks?Q2 Once I have initially checked a persons

documents, is there anything else I

have to do during the course o thepersons employment?Q3 How may a British citizen show their

eligibility to work in the UK?Q4 What i a prospective employee cannot

provide evidence o their entitlementto work?

Q5 What i a prospective employee producestwo documents, but not rom the speciedcombinations included in List A or List B?

Q6 What should I do i I have concernsabout the documents presented to me byan employee?

Q7 Should I keep original documents?Q8 How long do I need to keep the copies o

any o the documents I have recorded?Q9 What i my copies o the documents are lost

or accidentally destroyed?Q10 How can I balance the need or data

privacy and the need to satisy the statutoryexcuse criteria?

Q11 Why does the civil penalty and the knowingoence only apply to employees over 16?

Q12 Will I have an excuse against liability to paya civil penalty i I make a copy o a right oabode certicate rom an expired passport?

Main groups you can employ in the UK without

committing an oence

Q13 Do I need an excuse under section 15 whenemploying those workers who are exemptrom immigration control?

Q14 Which groups in the UK are not subject toimmigration control?

Q15 Can a British Dependent Territories Citizenwho has a connection with Gibraltar legallywork in the UK?

Documents that do not show a person is entitled

to work in the UK

Q16 Many British citizens do not have a UKpassport or a ull birth certicate, so why isthe short birth certicate not acceptable as a

document under section 15?Q17 Why cant I depend on a National Insurancenumber as a single document?

Q18 What i I check other documents whichestablish evidence o someones identity?

Q19 Why isnt a British visitors passport acceptable?Q20 Why arent driving licences issued by the

DVLA acceptable?Q21 Can an adopted person, who is a British

citizen and who does not have a ull birthcerticate, prove their eligibility to work inthe UK with their adoption certicate?

Defnition o an employer

Q22 What is the denition o employer orthe purposes o section 15 and 21 o the2006 Act?

Q23 How can I tell i my prospective worker willbe classed as someone who is sel-employedor my employee or section 15 purposes?

Q24 As a parent, am I responsible or checkingwhether my nanny or childminder is entitled

to work in the UK?Q25 Am I dened as the employer i I use an

employment agency to nd my sta?Q26 I am running an employment agency. Do I

have to carry out the checks?Q27 Who in the organisation is held liable or

employing someone illegally?Q28 What i I acquire sta as the result o a

TUPE transer?Q29 I am an employer based in the UK and I wish

to employ a non-EEA national based outsidethe UK. Would I be required to check myemployees entitlement to work?

INDEX


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Q30 My business employs workers on a casualbasis through the internet. Managers do notmeet with employees and are thereore unableto veriy the identity or entitlement towork o their employees. What steps canI take to ensure that I am not liable to paya civil penalty?

National Insurance (NI) numbers

Q31 Can I accept any document which contains aNI number?

Q32 What i a job applicant produces one o thedocuments rom a required combination, butdoes not have a document containing a NInumber? Should I employ that person andobtain a NI number or them ater they startworking or me?

Q33 What i a UK resident who is under 20applies or a job with me and claims they havenot been issued with a NI number, but doeshave a ull UK birth certicate?

Q34 Do workers rom EEA member statesneed a NI number to prove that they havepermission to work in the UK?

Employing asylum seekers

Q35 Can I employ asylum seekers?Q36 How will I know i an asylum seeker or ailed

asylum seeker is able to work?Q37 What i an individual presents me with a

Standard Acknowledgement Letter (SAL),or IS96W letter, which states that they areentitled to work?

Q38 I am already employing an asylum seeker,who I employed on the basis o seeingtheir SAL or IS96W. Should I ask or anApplication Registration Card (ARC), orconduct ongoing checks?

Employing European Economic Area workers

Q39 Do A8 nationals who are agency and/ortemporary workers need to register on theWorker Registration Scheme (WRS)?

Q40 Can I accept an identity card rom any EEAmember state in order to have an excuseagainst liability to pay a civil penalty?

Q41 Is the UKRP the same as the RegistrationCerticate issued to EEA nationals?

Q42 What is a residence card?Q43 Can a non-EEA national who was ormerly a

amily member o an EEA national maintaintheir entitlement to work in the UK?

Q44 What is a Certicate o Application?

Employing students

Q45 Are non-European Economic Area studentsallowed to work in the UK?

Q46 Students rom outside the EEA can workor 20 hours per week or 10 hours per weekdepending on when their leave was granted

or on their course during term time. How doyou dene term-time?

Q47 How does the 20-hour rule aect non-EEApostgraduate students?

Q48 What about work placements?Q49 Can a non-EEA student with valid leave to

enter or remain in the UK deer their studies?Q50 What are the rules or student nurses?

Further questions

Q51 Can I be liable or payment o a civil penaltyi I am ound to be providing voluntary workto someone without permission to work inthe UK?

Q52 How can I establish a statutory excuse imy employee, or potential employee has appliedor urther leave to remain in the UK, but theirdocuments are with the UK Border Agency?

Q53 Does the requirement to show a combinationo National Insurance Number and a birthcerticate discriminate against BritishCitizens who have been or are in theprocess o gender transitioning? Therequirement may cause problems or aperson in this situation.

The points-based system

Q54 What is the points-based system?Q55 What is sponsorship under the

points-based system?


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ESTABLISHING AN EXCUSE AGAINST LIABILITY

FOR PAYMENT OF A CIVIL PENALTY

Q1 Why should I carry out document checks?

A. We recommend that document checks areconducted on all prospective employees,

as this enables you to establish an excuseagainst liability to pay a civil penalty, providesevidence o an open and transparentrecruitment process, and will ensure that yourrecruitment practices do not discriminateagainst individuals on racial grounds.

The Government has made inormationavailable on how to avoid racialdiscrimination, in addition to a Code oPractice or employers which aims to provide

employers with guidance on the best practice.The Code o Practice does not create anynew legal obligations or employers or makean employer liable to any proceedings, butany breach o the Code can be admissibleas evidence in any proceedings in a courtor tribunal.

I you operate discriminatory recruitmentprocesses you could ace prosecutionunder the 1976 Act or the 1997 Order, andan unlimited fne i you are ound guiltyo breaking these laws.

Q2 Once I have initially checked a personsdocuments, is there anything else Ihave to do during the course o the

persons employment?

A. You can establish an excuse against liabilityto pay a civil penalty by ollowing steps 1 3detailed on pages 8-10.

I the prospective employee provides thespecied documents rom List A no urtherdocument checks need to be made during thecourse o that persons employment with you.

I the prospective employee provides thespecied documents rom List B, then tomaintain an excuse you will need to carry outrepeat checks at least once every 12 monthsto ensure the employee can still work legallyin the UK. To establish and maintain theexcuse, you should continue to carry outthese checks until the employee producesspecied documents rom List A, or stopsworking or you.

You will not at any point have an excuseagainst liability to pay a civil penalty i

you employ a person who you know isnot entitled to work or you, regardless o

what document checks you carry out.

Q3 How may a British citizen show their

eligibility to work in the UK?

A. A British citizen may demonstrate theireligibility to work by providingeither their UKpassport as a single document, or a combinationo the ollowing documents rom List A:

a document issued by a GovernmentAgency or previous employer containingtheir National Insurance number andname, such as a P45, P60 or National

Insurance number card and

a ull UK birth certicate; or

a ull UK adoption certicate; or

a certicate o registration as a Britishcitizen; or

a certicate o naturalisation as aBritish citizen.

Q4 What i a prospective employee cannotprovide evidence o their entitlementto work?

A. It is the prospective employees responsibilityto demonstrate that they are permitted todo the job you are oering. You canwithdraw your oer o employment to ajob applicant i they cannot demonstratetheir entitlement to work legally and youneed to ll the post urgently.

I you do not need to ll your postimmediately and the prospective employeedoes not have any o the documents orspecic combinations o documents includedin List Aor List B, then you may considerkeeping the post open and allowing themtime to produce the specied document, ordocuments, rom these lists.

Further inormation on conductingdocument checks and in particular on howto avoid unlawul discrimination can beound in the Avoiding UnlawulDiscrimination Code o Practice on theUK Border Agency website:


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www.ukba.homeoce.gov.uk/sitecontent/documents/employersandsponsors/preventingillegalworking/

Q5 What i a prospective employee producestwo documents, but not rom the specifedcombinations included in List A or List B?

A. You will only have an excuse against liabilityto payment o a civil penalty i you arepresented with one o the single documentsor the specied combinations o documentsset out in List A or B.

Q6 What should I do i I have concerns about thedocuments presented to me by an employee?

A. I you have ollowed the guidance detailed

on pages 8-10, and are not satised that theprospective employee is the rightul holder othe documents they have produced to you orthat the documents are genuine, then you maywish to request other documentation romthe prospectiv