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Human resources | 01 April 2014

The resignation of Mark Harper, MP and former immigration minister, in February 2014, is a very public reminder to all employers of the importance of checking right to work documentation for employees, and retaining the appropriate copies of these documents. 


In Mark Harper’s case, outlined in his 
letter to prime minister David Cameron, 
he confirmed that he had employed a cleaner since April 2007 that did not have the required right to work. This cleaner 
was engaged on a ‘contract of services’ basis, which Mark Harper deemed as 
self-employed. To verify this point, he made the necessary checks with HMRC who confirmed this was the case. Mark Harper asserts in his letter that he was not obliged to undertake further steps to verify the cleaner’s legal right to work, although he felt it appropriate to do so. His cleaner provided a letter from the Home Office confirming her status as having indefinite leave to remain, together with her original passport. In 2010, when appointed as a minister in the Cabinet Office, Mark Harper reviewed the matter again and concluded the correct checks were made in 2007. Mark Harper revisited this issue in 2012 when he was appointed immigration minister, again concluding that all the necessary checks were carried out, though in retrospect he admitted he could have been more thorough.

While leading parliamentary debate on the October 2013 Immigration Bill, Mr Harper stressed the importance of immigration status checks. Consequently, he thought it necessary to review his cleaner’s documents for a fourth time. In doing so, he could not locate the copies taken and asked her to provide the same again, which she did. His private office then made further checks to verify the cleaner’s documents, and on 6 February 2014 the Home Office confirmed that she did not have indefinite leave to remain and therefore did not have the right to work.

In his resignation letter, he stated that, as the immigration minister, he held himself to a higher standard than that expected of others. Furthermore, at that time he was taking legislation through Parliament that would toughen up immigration laws in the UK. Mr Harper asserted that he had not broken any laws as they stood at the time of employing his cleaner.

IMMIGRATION BILL AND RIGHT TO WORK CHECKS

The Immigration Bill, if given royal assent, will automatically require landlords and estate agents to monitor the immigration status of their tenants. These requirements will be the same as those imposed on employers currently who employ non-EEA migrants. Landlords unable to prove to the Home Office that they took reasonable steps to satisfy themselves as to the authenticity of a document presented may find themselves liable to a penalty fine. A summary of the checks required by employers are listed at below.

WHAT ARE THE REQUIREMENTS FOR EMPLOYERS?

We are increasingly seeing employers seeking assistance in either training on immigration compliance or in completing the right to work checks for their employee population. This is an area which has become burdensome on employers in the UK. We have summarised in brief the requirements of right to work checks for employers below.

Relevant legislation

The relevant checks for a person employed post 29 February 2008, are governed by ss15-25 of the Immigration, Asylum and Nationality Act 2006. Before this Act came into force, the requirements were governed by s8 of the Asylum and Immigration Act 1996.

Checks post 29 February 2008

The 2006 Act came into force on 
29 February 2008. It states that employers have a duty to undertake right to work checks of any person employed on or 
after this date. This check should be made before the person is employed and is completed by reviewing the documents to ensure they have the right to work. By completing the document checks and retaining the required evidence, the employer provides themselves with a statutory excuse against a fine. To complete a document check an employer must follow a three-step process:

  1. The employer must ask the employee 
to provide a single document, or specified combinations of documents, from either list A or list B. These lists can be found in Annex A of the April 2012 summary guide for employers on preventing illegal working in the UK. List A documents are not required to be checked again, list B documents must be checked annually.
  2. The employer is required to take reasonable steps to check that the documents produced are genuine. In addition they must be satisfied that the person who provided the document is the rightful owner and allowed to undertake the work offered.
  3. Once the above steps have been completed, a copy of the documents must be taken. They must be taken in a format, which cannot later be altered, for example a photocopy or scan. It is also recommended that a date is placed on the document copy and as well as confirmation of who completed the check (otherwise known as certifying 
as a true copy).
Checks pre 29 February 2008

The previous requirements under the 
1996 Act continue to apply to staff that started working for any persons between 27 January 1997 and 28 February 2008. Under subsection 2 of the act the employer is required to ensure that:

  1. before the employment began, there was produced to the employer a document which appeared to relate to the employee and to be of a description specified in an order made by the secretary of state; and
  2. either the document was retained by the employer, or a copy or other record of it was made by the employer in a manner specified in the order in relation to documents of that description.

CONCLUSION

Mark Harper’s cleaner was employed when the 1996 Act was in force. Though the cleaner was self-employed according to HMRC, under the guidance at the time it states that whether you are deemed employed is a matter of facts and circumstance. If it were found that Mr Harper failed to complete the two stage test required of an employer by not keeping a record of the documents reviewed, he could face a fine of up to £5,000.

This case further illustrates the burden that is placed on employers; a burden which may now be extended to landlords and estate agents. Even with Mark Harper’s unlimited resources, it was not until he became the immigration minister and began working on the Immigration Bill, that he fully investigated his cleaner’s right to work. Mr Harper also failed to properly retain documents, which could have easily been misplaced, resulting in no record being available. This error can easily be replicated by an employer, who may not have the benefit of extensive exposure to the immigration rules, relying solely on having to trawl through hundreds of pages of guidance to extinguish any concerns.

If you have any right to work queries or concerns please do get in touch with a member of Magrath LLP’s immigration team.

By Helen Cleere, solicitor, Magrath LLP.

E-mail: helen.cleere@magrath.co.uk.