Q: Was the burger chain Byron right to co-operate with the Home office investigation in to illegal workers?
A: On the 4th July the immigration officers carried out raids at the restaurants of the burger chain Byrons’s as it suspected that some employees were working without the correct right to work. Byron’s fully cooperated with the investigation and they maintained that they had carried out the proper checks but the employees in question had provided false documents. Byron’s have subsequently come in for some criticism for cooperating with the authorities, but what in law could they do?
In reality the Directors of the business had no real option other than to comply with the law and assist with the investigation. To do so may have led to civil being taken against the business and/ or criminal sanctions against the Directors themselves.
The law states that it is unlawful to employ an individual who does not have the appropriate right to live and work in the UK or who is working in breach of their conditions of stay in the UK.
An employer needs to carry out ” right to work ” checks, before an individual starts employment, to conduct follow-up checks on those who have a time-limited permission to work, and to keep a record of all the checks it has carried out. Under the Immigration, Asylum and Nationality Act 2006 it is a civil and criminal offence for a business to fail to carry our checks and which has reasonable cause to believe that they may employ people who do not have the right to work in the UK.
The Immigration Act 2016 imposes further sanctions on a business which includes these key measures to combat illegal working:
An extension of the criminal offence of knowingly employing an illegal migrant to include circumstances where an employer has “reasonable cause to believe” that a person is an illegal worker. This provision came in to force on 12 July 2016.
An increase in the conviction on indictment for that offence from two to five years. This provision came in to force on 12 July 2016.
A power to impose compliance sanctions and close businesses that continue to employ illegal workers. This provision came into force on 12 July 2016.
Increased powers for Immigration Officers to enter business premises to search for documents and to seize and retain evidence in relation to an offence. These provisions came in to force on 12 July 2016.
Creation of a new offence of illegal working which would enable the earnings of illegal workers to be seized under the Proceeds of Crime Act 2002. This provision came into force on 12 July 2016.
A requirement that public authorities ensure that public sector workers in customer-facing roles speak fluent English. It is not yet known when this provision will come into force.
A power to appoint a new Director of Labour Market Enforcement to oversee labour market regulators and to provide a co-ordinated strategy for enforcement and compliance. This provision came into force on 12 July 2016.
A business may be fined up to £20,000 per employee who does not have the right.
In addition the employer may commit a criminal offence if they have reasonable cause to believe that the employee is disqualified from working by reason of their immigration status. The sentence can be up to 6 years imprisonment.
So what must a business do to carry out the right checks?
The three-step right to work check: obtain, check, copy
The three-step checks that employers must undertake to comply with the law and secure the statutory excuse are to:
Obtain the employee’s original documents as prescribed in the Home Office guidance.
Check in the presence of the employee that the documents are original and valid.
Copy and keep the documents securely and record the date of the check and date for follow-up checks.
There is also an online Employer Checking Service available for employers that want to check an individual’s right to work in the UK and the individual:
Has made an application or appeal, or a request for an administrative review to the Home Office that has not yet been decided.
Is an asylum seeker and have shown the employer an application registration card.
Presented a certificate of application issued to or for a family member of an EEA or Swiss national that states that the holder is allowed to work.
The Employer Checking Service will issue an employer with a Positive verification notice (PVN) in those cases which confirm the right to work
Employer must obtain original documents
The employer must request, and the individual must provide, certain prescribed original documents to establish their eligibility to undertake the work on offer. The documents that are required depend on whether the person is subject to immigration
The documents that are acceptable are set out in two lists: List A and List B
Documents for individuals who are not subject to immigration control or have no restriction on their length of stay
If the individual is not subject to immigration control (or has no restrictions on their stay in the UK, for example they hold indefinite leave to remain) they should provide original documents as set out below (described as List A documents in the Guidance). The Home Office recommends that employers check valid passports or travel documents, but evidence in expired documents can be used for British nationals and nationals of an European Economic Area (EEA) member state:
A passport showing that the holder, or a person named in the passport as the child of the holder, is a British citizen or a citizen of the UK and Colonies having the rightof abode in the UK.
A passport or national identity card showing that the holder, or a person named in the passport as the child of the holder, is a national of the EEA or Switzerland.
A registration certificate or document certifying permanent residence issued by the Home Office to a national of an EEA country or Switzerland.
A permanent residence card issued by the Home Office to the family member of a national of an EEA country or Switzerland.
A current Biometric Immigration Document (Biometric Residence Permit) issued by the Home Office to the holder indicating that the person named in it is allowed to stay indefinitely in the UK, or has no time limit on their stay in the UK.
A current passport or other travel document endorsed to show that the holder is exempt from immigration control, is allowed to stay indefinitely in the UK, has the right of abode in the UK, or has no time limit on their stay in the UK.
A current Immigration Status Document issued by the Home Office to the holder with an endorsement indicating that the person named in it is allowed to stay indefinitely in the UK or has no time limit on their stay in the UK, when produced in combination with an official document giving the person’s permanent National Insurance (NI) number and their name issued by a government agency or a previous employer.
A full birth or adoption certificate issued in the UK that includes the name(s) of at least one of the holder’s parents, when produced in combination with an official document giving the person’s permanent NI number and their name issued by a government agency or a previous employer.
A birth or adoption certificate issued in the Channel Islands, the Isle of Man or Ireland, when produced in combination with an official document giving the person’s permanent NI number and their name issued by a government agency or a previous employer.
A certificate of registration or naturalisation as a British citizen, when produced in combination with an official document giving the person’s permanent NI number and their name issued by a government agency or a previous employer.
Where an individual provides an acceptable document from List A, this will provide the employer with a continuous statutory excuse and no further follow-up checks will be necessary.
Documents for individuals who are subject to immigration control and have a restriction on their length of stay
If an individual has limited leave to remain or enter for a particular period of time, they must provide original documents as set out below (
A current passport endorsed to show that the holder is allowed to stay in the UK and is allowed to do the type of work in question.
A current Biometric Immigration Document (Biometric Residence Permit) issued by the Home Office to the holder that indicates that the person named in it can stay in the UK and is allowed to do the work in question
A current residence card (including a Accession Residence Card or a Derivative Residence Card) or document issued by the Home Office to a family member of a national of an EEA country or Switzerland or who has a derivative right of residence.
A current Immigration Status Document containing a photograph issued by the Home Office to the holder with an endorsement indicating that the person named in it can stay in the UK and is allowed to do the type of work in question, when produced in combination with an official document giving the person’s permanent NI number and their name issued by a government agency or a previous employer.
An individual who provides an acceptable documents from List B Group 1 will afford the employer with a time-limited statutory excuse that expires when the individual’s leave expires.
If an individual has been issued with an EEA family permit or EC Residence Card on the basis they are the family member of a national of an EEA member state or Swiss national and they currently have an application pending with the Home Office for processing, they must provide original documents as set out below (described as List B, Group 2):
A Certificate of Application issued by the Home Office under regulation 17(3) or18A(2) of the Immigration (European Economic Area) Regulations 2006 (SI 2006/1003) to a family member of a national of a EEA member state or Switzerland stating that the holder is permitted to take employment that is less than six months old together with a Positive Verification Notice from the Home Office Employer Checking Service.
An Application Registration Card issued by the Home Office stating that the holder is permitted to take the employment in question, together with a Positive Verification Notice from the Home Office Employer Checking Service.
A Positive Verification Notice issued by the Home Office Employer Checking Service to the employer or prospective employer that indicates that the named person may stay in the UK and is permitted to do the work in question.
Note that if the individual presents the above documents (and if the employer obtains a Positive Verification Notice) they will only be able to establish a statutory excuse for 6 months. However if during this time the individual receives their original passport and new permit or card, the employer should carry out the right to work check again to establish a continuing or extended statutory excuse depending on whether the employee’s permission is time-limited.permit or card, the employer should carry out the right to work check again to establish a continuing or extended statutory excuse depending on whether the employee’s permission is time-limited.
If you require any advice in relation to any of the points raised in this blog please contact Q&A HR on 01920 463777 or
