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Illegal aliens – do you employ one?

While the political debate wages on over the government’s immigration policy, the fate of Mark Harper, the minister responsible for implementing tough new measures to curb immigration and behind the disastrous “Go Home “ advertising campaign, is a wakeup call to all employers including those who engage domestic staff.

Harper was forced to resign last week after it came to light that his South American cleaner, who had worked for him for seven years, had apparently duped him into believing she was entitled to work in the UK.  Harper claimed that when he hired her in 2007 he checked and took copies of her passport and a Home Office letter giving her indefinite leave to remain and work in the UK. However, Harper says he then lost the copies and, when he carried out new checks recently, her documentation was invalid.

It is unlawful to employ anyone who does not have the right to live and work in the UK or who is working here illegally. All employers are required to carry out checks before someone starts working for them and to keep a record of the checks which were carried out. It is a criminal offence knowingly to employ an individual who does not have the requisite permission to work in the UK. Under the current regime, which came into force in 2008, employers who negligently employ such a person face a civil penalty of up to £10,000 (which is likely to increase on 6 April 2014 to £20,000 with £15,000 payable for a first offence). It seems that Mark Harper may not have committed an offence under the previous immigration regime which ended in 2008 but clearly his position as immigration minister was untenable.

It is not always easy to tell if an overseas national is allowed to live and work in the UK.  Employers face a confusing array of immigration categories ranging from those who are permitted to work here without restrictions such as European nationals from the 27 EU member states (including Romania) and from Iceland, Liechtenstein, Norway and Switzerland and those who are legally settled here to individuals who are subject to immigration control and have restrictions on their period of stay and on their ability to work.  Employers are required to check original documents evidencing the prospective employee’s right to work in the UK (there is a comprehensive guide issued by the UK Border Agency to identifying false documents) and to make and retain copies. In certain cases employers have to conduct annual checks. Embarrassingly for Mark Harper, he seems to have fallen down on all of these requirements.

Strictly, the obligation to make these pre-employment immigration checks applies only to employees employed under a contract of service and to apprentices. Those who engage domestic staff such as cleaners, gardeners, nannies, au pairs and home helps may assume that the immigration rules don’t apply to them especially if they pay them in cash and don’t give them an employment contract. However, this is a dangerous assumption. A person’s employment status is determined by what they do and how they do it rather than how they are paid or whether they have a written contract. Domestic staff may well have the status of employees and have employment protection rights such as limits on  their working hours and  rights to a written statement of their employment terms, rest breaks, holiday pay and the minimum wage. As well as potentially falling foul of employment and immigration laws, those who pay cash to their domestic helpers may face high penalties for failing to deduct and account for PAYE income tax and to pay the national minimum wage.

There have been more than 200 prosecutions of employers for immigration offences since 2008 and no sign that the campaign against those who employ illegal immigrants will abate.  Given the hefty penalties involved for employers who do not take care to make the necessary checks and the potential for damaging publicity, every employer including those who have domestic staff, should make sure they understand the requirements on them and that they have evidence of the right to work in the UK for all their employees.

For further information please contact Helga Breen Partner, Head of Employment,  London helga.breen@dwf.co.uk

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Legal news, views, trends and tools for HR Professionals. Stay ahead. Go further