An employer is excused from paying a penalty for illegal working under S.15 of the Immigration, Asylum and Nationality Act 2006 if the employee produces any of the documents described in the Schedule to the Immigration (Restrictions on Employment) Order 2007 (“the 2007 Order”) and the employer complies with the requirements prescribed in Article 6 of the 2007 Order in relation to verification, copying and recording of any documents produced by an employee. With effect from 16 May 2014 the Immigration (Restrictions on Employment) (Codes of Practice and Amendment) Order 2014 brings in a number of changes to the system. In summary, under the 2014 Order:

• Employers will have to keep a record of when right to work checks are made but will no longer be required to conduct annual checks or keep a copy of the front page of a passport.
• Employers will be required to obtain and retain a copy of evidence in respect of students with time-limited permission to work in the UK setting out their term and vacation times covering the duration of their period of study in the UK for which they will be employed.
• List A of the acceptable documents is amended to reduce the number of documents and to require certain documents to be current at the time they are produced to the employer.
• List B of the acceptable documents is replaced with a new List B which is in two parts.
• Two revised codes of practice are brought into force: (i) Code of practice on preventing illegal working: Civil penalty scheme for employers, specifying factors to be considered by the Secretary of State in determining the amount of a penalty; and (ii) Code of practice for employers: Avoiding unlawful discrimination while preventing illegal working, specifying what an employer should or should not do in order to ensure that, while avoiding liability to a penalty and avoiding committing an offence, the employer also avoids race discrimination.

Employers should review their system of right to work checks to ensure compliance with the changes to the law and the revised Codes. This is particularly important in view of another change to the law from 16 May 2014 when the fine for employers who negligently hire illegal workers will increase from £10,000 for each illegal worker to £20,000, unless the statutory 'excuse' defence can be successfully mounted.
 

Content Note

The aim is to provide summary information and comment on the subject areas covered. In particular, where employment tribunal and appellate court cases are reported, the information does not set out full details of all the facts, the legal arguments presented by the parties and the judgments made in every aspect of the case. Click on the links provided to access full details. If no link is provided contact us for further information. Employment law is subject to constant change either by statute or by interpretation by the courts. While every care has been taken in compiling this information, SM&B cannot be held responsible for any errors or omissions. Specialist legal advice must be taken on any legal issues that may arise before embarking upon any formal course of action.