Keeping it legal

Your legal questions answered by Nichola Carter, Head of Immigration Law at solicitors H2O Law LLP

My workforce includes a number of  foreign nationals who work on an employed and a self-employed basis. What steps should I take to make sure that I don’t fall foul of immigration issues?

There are currently over 80 employment-related routes in the Immigration Rules and the above represent the most popular. It is essential therefore that thorough checks are made to establish whether or not a person who is subject to immigration control can work for you, and if they can on what basis.

Time Limits
You should make a note of the expiry date contained on endorsements and immigration documents and warn your employees well in advance that in order to continue to work for you beyond the employment date they will have to produce to you a new original endorsement or other proof evidencing their right to work in the UK.

Are members of your workforce employed or self-employed?
Just because you and your workforce consider that they are self-employed does not necessarily mean that this is the case.

If you can answer yes to any of the following questions that would indicate that the worker is likely to be your employee regardless of the agreement between you:
• Do you require the personal services of the worker?
• Do you control when and how the work is done, what tasks have to be done and where the services are performed?
• Do you supply the tools or other equipment needed for the work?

On the other hand, if you can yes to any of the following questions that would indicate that the worker is likely to be self employed:
• Does the worker have the right to provide a substitute or engage their own workers?
• Does the worker decide whether or not to accept individual tasks and how to carry them out?
• Does the worker make their own arrangements for holidays or sickness absences?
• Is the worker free to do the same kind of work for more than one employing entity at the same time?

If there is any doubt as to whether or not the worker is employed or self-employed it is best to assume that they are employed and conduct the necessary check prior to the commencement of work to ensure they are lawfully permitted to undertake such work.

If the worker is truly self-employed then, if they are not permitted to work in the UK, you have no legal responsibility. However, there are other consequences to consider such as the effect it may have on your business and reputation if projects are brought to a standstill because members of your workforce are suddenly unable to work due to immigration enforcement action.

What can happen if my employee does not have permission to work?
Presently it is a criminal offence under section 8 of the Asylum and Immigration Act 1996 for an employer to employ a person aged 16 or over if that person does not have permission to enter or remain in the United Kingdom; or that permission is no longer valid, or if it does not permit employment.

Employers can be fined up to £5,000 in relation to each individual found to have been employed illegally. Directors, managers, company secretaries or similar office holders can be criminally prosecuted where an offence has been committed by a company.

A designated Home Office team investigates employers and conducts spot checks on employees. The police can also report employers who are employing individuals illegally to the Home Office, as can any other party.

Section 8 provides a specific defence to employers who can prove that before employment began, the employee produced to them a document which was of a description specified by the Secretary of State.

The employer must also prove that they retained the document, or a copy or other record of it was made by the employer in a manner specified by the Secretary of State.

Full information including lists of documents are available on the Border and Immigration Agency website.

The Future

The Government is tightening the law in relation to the employment of illegal workers.

It has already passed the Immigration, Asylum and Nationality Act 2006 which, when effective, will mean that those found employing illegal workers will face much harsher penalties than under the present system. In particular a new civil penalty notice scheme is being introduced. This will mean that an enforcement unit from the Home Office will make spot-checks on employers and will issue a civil penalty notice on the spot in respect of each employee whom the employer cannot prove there and then has permission to work in the UK.

The employer will have 28 days from the notice date to explain, in writing, why the penalty should not be enforced, after which s/ he will be liable to pay a fine of up to £10,000 in respect of each civil penalty notice (unless the Home Office or Court accepts the written explanation).

Additionally a criminal offence of knowingly employing an illegal worker will be introduced which can lead to imprisonment for those convicted of knowingly employing an illegal worker.

It is our advice that those relying on the services of both employees and self-employed workers should conduct full checks to ensure that they are entitled to work in the UK.

It is also just as important to keep copies of documents produced by each individual confirming their legal eligibility to work.

Whilst H2O Law LLP makes every attempt to ensure the accuracy and reliability of the information contained in this article the information should not be relied upon as a substitute for formal legal advice. Neither Mobile Business nor H2O Law LLP, their employees or their agents will be responsible for any loss, howsoever arising, from the use of or reliance upon this information.

CONTACTS If you have any queries about immigration issues, please contact Nichola Carter at H2O Law LLP on 020 7405 4700.

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