Changes to the law on preventing illegal working: Guidance for UK Employers

Amendments to document checks under section 8 of the Asylum and Immigration Act 1996 coming into force on 1 May 2004

Section 8 of the Asylum and Immigration Act 1996 requires all employers in the United Kingdom to make basic document checks on every person they intend to employ. By making these checks, employers can be sure they will not break the law by employing illegal workers.

On 1 May 2004, the Government will introduce change to the type of document you, as a UK employer, will need to check under section 8 to avoid employing illegal workers. These changes will not make a major difference to the type of checks you are already required to carry out to meet your responsibilities under the law. They have been drawn up so that people who do have the right to work in this country, including those who live in our minority ethnic communities, can prove this swiftly and easily.

You may be aware that a number of new countries will be joining the European Union on 1 May 2004. From this date, all citizens from these countries will be free to work legally in the United Kingdom and contribute to our economy by helping to fill labour shortages.

The Government has decided that nationals from eight of these new European Union countries (Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Slovakia and Slovenia) will be required to register with the Home Office if they start working in the United Kingdom after 1 May 2004.

The law for employers on preventing illegal working

Section 8 of the Asylum and Immigration Act 1996 sets out the law on the prevention of illegal working.

Under the changes, you will be able to establish the defence for your potential employees by checking and copying one of the original documents from List 1.

You will also be able to establish the defence for your potential employees by checking and copying a combination of two original documents specified in List 2.

How to comply with the changes to establish the defence

Follow steps 1-3 set out in the guidance for every new potential employee who you may be considering employing from 1 May 2004 onwards. By doing this you will be sure that your recruitment practices comply with the new requirements for establishing the defence, and you will not be convicted of employing a person illegally.

You must make sure you carry out steps 1-3 before a person begins working for you. If you take on an employee and do not have the defence for that person, then you will be at risk of committing a criminal offence under section 8 if that employee is found to be working illegally for you.

Step 1
You should ask all of your employees to provide:

Step 2
Under the new changes to the law, you are required to satisfy yourself that your potential employee is the rightful holder of any documents they present to you. These documents should also allow them to do the type of work you are offering.
You must carry out the following reasonable steps when checking all of the documents presented to you by your potential employee:

Step 3
Finally, make a photocopy or scan (using only the Write Once Read Many/WORM software package) of the following parts of the documents shown to you:

You should then keep a record of every document you have copied. By doing this the Immigration Service will be able to examine your right to the defence if they detect anyone working illegally for you.

What should I do if a person is not able to work here?

If you have carried out these checks and established that your potential employee is not permitted to work, then you are entitled to refuse employment to that person. You may also want to call the Employers' Helpline on 0845 010 6677 for further advice.

Remember! It is up to your potential employee to show you that he or she is permitted to do the work you are offering.

Can I have the defence in all circumstances?

If you know that a person who is working for you is not permitted to do the job in question, then you will lose your right to the defence and could face conviction under section 8. This exception allows the Immigration Service to tackle the minority of employers who deliberately employ illegal workers and use forged documents to obtain a false defence.

You must make sure that you treat all applicants in the same way to avoid racial discrimination.

Employing Nationals from the European Economic Area

Nationals from the European Economic Area (EEA) countries can enter and work in the United Kingdom without any restrictions just like British Citizens. The same is also the case for their immediate family members.

You should not, however, employ any individual on the basis of his or her claim to be a national from and EEA Country, as you will put yourself at risk of employing someone illegally if this claim is false.

You should ask nationals from all EEA countries to produce a document showing their nationality. This will usually be either a national passport or national identity card. Some nationals from EEA countries may also produce a residence permit issued by the Home Office which confirms their right to reside and work here. All of these documents are included in List 1 and will provide you with the defence if checked and copied.

The following countries are part of the EEA:

* Those countries marked with stars are also members of the European Union.

From 1 June 2002, nationals from Switzerland have also had the same free movement and employment rights as existing EEA nationals.

On 1 May 2004 a further ten countries will join the European Union and also become part of the EEA. The countries who will join are:

Nationals from all ten countries will be free to come and work in the United Kingdom from 1 May 2004.

The Government is setting up a new Workers Registration Scheme to monitor the participation in the UK labour market of workers from the eight countries who are marked in the list above in bold capitals.

What should I do if I want to employ a worker from one of these eight countries after 1 May?

When you take on a new worker from one of the eight new countries in bold capitals above, you should:

You could be fined £5000 if you do not carry out this procedure properly.

LIST 1
Documents which provide the defence if produced alone

Any one of the documents included below in List 1 will provide you with the defence if you check and copy them, and follow the steps on pages 1 and 2.

Once you have checked one of these documents from your potential employee, there is no need to ask for any further documents contained in List 2.

LIST 2
Documents which provide the defence if produced in combination

List 2 covers the combinations of documents which will provide you with the defence if you follow all of the steps on pages 1 and 2. You will not have the defence if you see one document from the first combination and one from the second combination.

First Combination

A.   A document giving the person's permanent National Insurance Number and name. This could be a: P45, P60, National Insurance card, or a letter from a Government agency.

Along with checking and copying a document giving the person's National Insurance Number, you must also check and copy only one of the following documents listed in sections B-H:

B.   A full birth certificate issued in the United Kingdom, which includes the names of the holder's parents; OR

C.   a birth certificate issued in the Channel Islands, the Isle of Man or Ireland; OR

D.   a certificate of registration or naturalisation stating the holder is a British Citizen; OR

E.  a letter issued by the Home Office to the holder which indicates that the person named in it can stay indefinitely in the United Kingdom, or has no time limit on their stay; OR

F.  an Immigration Status Document issued by the Home Office to the holder with an endorsement indicating that the person named in it can stay indefinitely in the United Kingdom, or has no time limit on their stay; OR

G.   a letter issued by the Home Office to the holder which indicates that the person named in it can stay in the United Kingdom, and this allows them to do the type of work you are offering; OR

H.  an Immigration Status Document issued by the Home Office to the holder with an endorsement indicating that the person named in it can stay in the United Kingdom, and this allows them to do the type of work you are offering.

Second Combination

A.   A work permit or other approval to take employment that has been issued by Work Permits UK.

Along with a document issued by Work Permits UK, you should also check and copy one of the following documents listed at B-C:

B.   a passport or other travel document endorsed to show that the holder is able to stay in the United Kingdom and can take the work permit employment in question; OR

C.   a letter issued by the Home Office to the holder confirming that the person named in it is able to stay in the United Kingdom and can take the work permit employment in question.

None of the documents descriptions contained in List 1 and List 2 reflect the precise wording contained in the law. If you would like to obtain a full legal description of the changes, this will be available in the booklet the Home Office will be producing.

Find out more about these changes at www.ind.homeoffice.gov.uk or by calling the Employers' Helpline on 0845 010 6677. Further information about the Workers Registration Scheme for nationals from the new European countries is available from: www.workingintheuk.gov.uk