Immigration and Asylum Act

A friend of mine, who has been out of work for a while, went for an interview today and was turned away without an interview by the HR Manager because he hadn’t taken the right documents to prove he was eligible to work in the UK. My first reaction was to phone the HR Manager and try and educate her but my friend decided he didn’t really want to work for a company with such an un-flexible approach to their procedures. I have therefore written this reminder to the Immigration and Asylum Act, what documents you should check and when they should be checked.

The Immigration and Asylum Act

Under the provisions of the Immigration and Asylum Act it is a criminal offence to employ someone who is 16 or over and not entitled to work in the UK. While some overseas nationals are automatically entitled to work in the UK, others require a work permit. If you hire an overseas worker who does not have permission to work in the UK you could face a fine of up to £5,000 per offence.

What to Check

All potential employees must be asked to provide documentation, before starting employment, that proves they are eligible to work in the UK.

There are two lists of documents which can be used. I have added a link at the end of this article for you to download a Factsheet with the two lists of documents which you can give to potential employees.

It is not acceptable simply take a copy of the documents presented. You must also check that the potential employee is the rightful holder of the documents presented. This can be achieved by checking that:-

  • The photograph is actually of the individual
  • The date of birth is consistent with the applicant’s appearance
  • The information contained within the document corresponds with that contained within the application
  • The expiry date has not passed
  • Any UK Government stamps or endorsements permit the individual to perform the type of work on offer
  • If the two documents in List 2 bear different name, a further document is produced that explains the discrepancy

The relevant parts of the documents should be photocopied or scanned and retained on the employee’s personal file whilst they are employed by you and for at least six months after they leave the company.

When to Check

You must ensure that you have sufficient evidence to support your right of defence if the Immigration Office finds that an illegal immigrant has been engaged. Therefore, all checks must be carried out prior to an individual starting employment. It is up to the individual to prove that they are eligible to work in the UK – if you are not satisfied with the documents presented do not employ the individual until such time that they can provide satisfactory documents.

You can ask applicants to provide proof of entitlement to work in the UK at any stage before they start work.

So you can do it at the interview stage, but if you are filling a number of positions then that a lot of unnecessary checking. If it is more convenient you are perfectly entitled to ask only the person chosen to fill the vacancy to provide their documentation.

Avoid Discrimination Claims
If you choose to request documents at an earlier stage of the recruitment process, such as at the first or second interview stage, make sure that you ask all applicants who reach that stage so you do not risk being accused of race discrimination. If you asked a black job applicant to produce appropriate documents but not a white applicant you would be discriminating against the black applicant on the grounds of his race. Remember, there is no upper limit to compensation awards for racial discrimination.

Top Tips
If an applicant’s documents are incomplete, it is perfectly acceptable to continue with the selection process as planned. Simply ensure that if you offer that applicant the job you have checked the correct documents before they start work. I would suggest giving them a deadline to provide the documents and make it clear if they do not comply you will offer the position to another applicant.

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Immigration and Asylum Act

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