Keep it legal: Migrant workers

The law on migrant workers changed significantly in February. The new points-based system being rolled out by the Home Office affects all applications for both new work permits and extensions of existing work permits, and has been well publicised. However, another aspect of the new legal regime is less well known but could potentially have a large impact on employers, including charities: the introduction of a civil penalty of up to £10,000 for employing an illegal worker.

The Immigration Asylum and Nationality Act 2006 states that this maximum fine will be imposed for each illegal employee whose documents the employer in question has failed to check. So if a charity has three illegal workers on its payroll, it could be liable for a £30,000 fine. Because the legislation is new, it is not yet possible to comment on whether the full penalty will, in reality, be pursued by the Home Office.

Trustees should also bear in mind that the Government has been careful to point out that, when carrying out the required checks on future employees, employers should be careful not to use any discriminatory recruitment practices. The Home Office website provides detailed guidance on how to prevent any unlawful discrimination taking place. The best way for employers to make sure they do not discriminate is to treat all job applicants in the same way at each stage of the recruitment process - for example, by doing document checks on all applicants as a matter of routine.

The 2006 act also makes it a criminal offence for any employer to knowingly employ illegal migrant workers. The penalty in this instance is an unlimited fine and a maximum two-year prison sentence. There is a continuing obligation for all employers who employ migrant workers with a time-limited immigration status to undertake ongoing checks on their entitlement to work in the UK. These checks must take place at least once a year.

The penalties will apply to the third sector as much as to any commercial business. It is therefore important that recruitment policies are reviewed to ensure compliance, and that any new or existing migrant workers are asked for the appropriate documentation.

 - Jane Kenyon is an associate solicitor in the charities practice group at BP Collins

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