The Asylum and Immigration Act 1996, which came into force on 27 January, is regarded by many as a cynical attempt by the Government to turn employers into immigration officers by placing employers under a statutory duty to check the status of all job applicants.
Section 8 of the Act makes it a criminal offence for an employer to employ any person aged 16 or over after this date who is “subject to immigration control” – in brief, this means any person who does not have leave to live or work in the UK. For each offence, employers will face a maximum fine of £5,000 depending, inter alia, on the seriousness of the offence and the financial circumstances of the employer.
The Act is not retrospective and will not apply to any employees who commenced employment before 27 January 1997. Employers should not carry out any checks on the status of these employees or ask them to produce any of the documents necessary to establish a defence.
The Act will, however, apply to previous employees who are re-employed after this date, regardless of their immigration status when first employed. It applies equally to full and part-time workers whether they are employed on a permanent or casual basis, and regardless of their status within the employer's business.
If the employer is a corporate body, then it will be the company that will be liable for committing the offence. However, individuals within the company may also be liable. This will be the case if they are at such a level within the company that they are regarded as being in overall management and if the offence was committed with their consent or knowledge or occurred as a result of their negligence.
Section 8 of the Act provides a defence if it subsequently transpires that an employee is working without the correct permission. This defence will apply provided that before their employment commenced, the employer asked the employee to produce one of the specified documents. This document must then have been inspected to ensure it related to the person in question, copied and kept on the person's file until at least six months after their employment ended.
The full list of documents which applicants must produce includes documented National Insurance numbers from a previous employer or the Inland Revenue such as P45s or P60s. If these are not available then other valid proofs of status must be produced such as EC passports, residence or work permits, birth certificates or a passport showing that the person is exempt from immigration control.
Inevitably, this will cause an administrative headache for many employers and will prolong the recruitment process. However, this is the only way in which they can establish a defence if it turns out that a person is working without leave.
We advise employers to amend their recruitment procedures so that applicants are asked to produce one of the specified documents. They should also ensure that all those involved in recruitment are made aware of the Act and given training on how they can comply with it.
The real concern among lawyers is that in complying with the Act and in being more vigilant, employers will racially discriminate and leave themselves open to Industrial Tribunal claims and unlimited awards of compensation.
Employers should check the eligibility of all applicants and act consistently when implementing the Act. They should not ask just those applicants who look or sound foreign about their status, nor should they make assumptions about an applicant's right to work in the UK based on their colour, race, or ethnic origin.
Employers should ask all applicants for one of the specified documents at the same stage of the recruitment and selection process.
This may be at the time an application is submitted or after an interview has taken place. The important thing is that employers act fairly and not over-zealously in the way they treat job applicants.