Back to Legal Working

Statutory Defence

The Act gives employers a statutory defence against conviction if they have checked and copied certain original documents belonging to your employee.  Any one of the documents included below in List 1 will provide you with the defence if you check and copy them, and follow all of the 3 steps outlined below.  The appropriate combination of documents from List 2 will provide you with the defence if you follow all of the 3 steps detailed below.

Step 1

You should ask all of your potential employees to provide:

• one of the original documents included in List 1 ; OR
• two of the original documents in the combinations given in List 2

There is no need to ask your potential employee to produce documents from both List 1 and List 2.

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 of the documents they present to you and that these documents 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:

• check any photographs, where available, to ensure that you are satisfied they are consistent with the appearance of your potential employee;
• check the dates of birth listed so that you are satisfied these are consistent with the appearance of your potential employee;
• check that the expiry dates have not been passed;
• check any United Kingdom Government stamps or endorsements to see if your potential employee is able to do the type of work you are offering;
• if your potential employee gives you two documents from List 2 which have different names, you should ask them for a further document to explain the reason for this. The further document could be a marriage certificate, divorce document, deed poll, adoption certificate or statutory declaration.

Step 3

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

• the front cover and all of the pages which give your potential employee’s personal details. In particular, you should copy the page with the photograph and the page which shows his or her signature; and

• any page containing a United Kingdom Government stamp or endorsement which allows your potential employee to do the type of work you are offering.

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.

Penalties

If you are looking to use migrant workers it is essential that you adhere to the obligations of the Asylum and Immigration Act.  Failure to do so constitutes a criminal offence. 

Currently employers using illegal workers are also fined a fixed sum of £5000 fine per illegal worker.  From February 2009 a sliding scale will be introduced with fines of up to £10,000 per illegal worker.  Incidentally, latest figures show that the average cost of repatriating an illegal worker stands at £10,000!

The Government have recruited substantial numbers of additional enforcement officers to carry out legal working checks.  This clearly means the number of unannounced checks is set to rise substantially.

It is therefore essential that you see, copy and retain original documentation relating to individual workers which validates their right to work legally in the UK.

.