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Immigration Checks and Unfair Dismissal

The Government recently announced that new local immigration teams have been introduced across the UK to track down illegal migrants. They are targeting those employers that break the rules and are gathering evidence by working with a range of local agencies. This announcement together with the increase in penalties for employers found to be employing illegal migrants, introduced on 29 February 2008, have resulted in many employers going through their records to ensure that every member of their workforce – irrespective of their start date – has the right to work in the UK. What should an employer do if it discovers that it does not hold any valid documentation and the employee can not produce any?

The requirement for employers to check whether their workforce can validly work in the UK has gone through a number of changes over the last 10 years. The following summary sets out what checks employers were required to undertake and the position now.

Up to 27 January 1997 – no checks required.

From 27 January 1997 to 30 April 2004 – checks were required. However a National Insurance number was acceptable proof of an individual’s right to work without any additional documentation.

From 1 May 2004 to date – employers are obliged to check that their workers have appropriate documentation from List A or B (These lists are available from the Home Office Border and Immigration Agency).

From 29 February 2008 – employers are required to make additional checks every 12 months for those individuals only able to produce documents from List B. (List B documents indicate that the holder has restrictions on his or her entitlement to be in the UK).
Any employee without 1 year’s service should be dismissed, without notice, in the event that he or she fails to supply appropriate documentation. This is particularly important for workers recruited on or after 29 February 2008, since an employer will commit a criminal offence if found to have deliberately employed an illegal migrant. In these circumstances the employer could still be found guilty of negligently employing an illegal migrant and receive a fine, but will at least be able to show that despite its failure to properly check documentation at the outset of the employment relationship, it did take appropriate steps once it became aware of the breach.

The situation is however more complex for those employees with at least one years’ service and the approach taken will depend on whether checks were initially required. Because an NI number was sufficient proof of the right to work up to 30 April 2004, in practice, most issues will arise in respect of employees recruited on or after 1 May 2004. If no, or inadequate checks were obtained, the employer should give the employee the opportunity to supply the relevant documentation within a reasonable period of time and warn the employee that he or she will be dismissed if they can not supply it. The employer should ensure that the statutory dismissal procedures are followed, by issuing a Step 1 letter, holding a meeting and giving the employee a right of appeal. It must also act reasonably before dismissing. Clearly an employer will not act reasonably if it dismisses an employee recruited before pre-employment checks were required unless it has actual proof that the individual is not entitled to work in the UK.

If a worker maintains that he/she can not produce the documentation because it is with the Home Office pending a decision on their immigration status, the employer should make further enquiries before dismissing. The Home Office UK Border Agency service offers an Employer Checking Service which will confirm whether an individual has the right to work in the UK pending resolution of their immigration application. The service is free and the turnaround is 5 working days.

However, the UKBA can only undertake checks where:

an outstanding application for leave to remain in the UK has been made before the previous one ended:

an outstanding appeal against a refusal of an application has been made before the employee’s previous leave to enter or remain in the UK ended;

a Certificate of Application has been issued within the last 6 months; or

an Application Registration Card is supplied stating “Employment Permitted” or “Allowed to work”.

The application must be made by the employer and can be faxed to the agency.

Therefore where an employee presents one of the above “excuses”, an employer will not act reasonably unless it utilises the service to check whether the employee can continue to work.