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REC Guide - Checking Identity
REC Legal Reference Guide:Recruiting & Checking Staff & Temporary WorkersThe following is an explanation of why we are asking our applicants (both permanent and contract) for proof of identify.
1. How do I check the identity of a work seeker for the purposes of the Conduct Regulations?
Under the Conduct Regulations both agencies and employment businesses are obliged to confirm the identity of all work seekers before introduction or supply. The DTI has not provided any definitive list of documents that must be checked by employment agencies and businesses for these purposes, but has confirmed such a check would be satisfied by having sight of a copy of driving licence, passport, ID card, National Insurance document or a utility bill.
However, it is worth remembering such an ID check is not sufficient for the purposes of establishing a defence to an allegation of employing an overseas national who does not have immigration permission to work in the UK. It is advisable therefore for employment businesses engaging temporary staff to follow the Home Office Guidance on checking identity in order to avoid employing people without immigration permission to work in the UK.
2. How do I check the identity of a temporary worker for immigration purposes?
For members who engage PAYE temporary workers on contracts for services it is advisable to check work seekers’ original ID in line with the Home Office’s guidance on preventing illegal working.
Under the Asylum & Immigration Act 1996 (The Act) it is a criminal offence to employ an overseas national who is not permitted to work in the UK. As regards the supply of temporary staff on contracts for services, the Home Office’s current position is that they may consider an employment business or the client as the “employer” for the purposes of liability for employing overseas nationals illegally. The penalty for employing illegal workers is a fine on conviction of up to £5,000 per worker.
The Act however also provides an employer with a defence if, before the employment began, the employer had sight of original documentation from a specific list, which appeared to relate to the candidate, and which the employer has retained a copy. These specified documents are set out in a statutory instrument, which was updated on 1 May 2004.
Detailed guidance on the avoidance of illegal working together with the specified list of ID documentation which may afford an employer a statutory defence can be obtained from the Home Office from the following http://www.ind.homeoffice.gov.uk/6353/18383/18469/fullguidance1.pdf
The Home Office, supported by the REC, has also launched an online toolkit which is a useful resource for employers and agencies and can assist in verifying documentation and checking the ID of overseas workers www.employingmigrantworkers.org.uk.
The Home Office advises that in order to avoid possible claims under Race Relations legislation, employers should treat all candidates equally and as such should check all candidates’ ID.
It is important to note that ID checks to confirm immigration permission under the Act are not mandatory, however in order to be certain of a statutory defence to an allegation of employing a worker illegally, the employer must have performed the ID check in line with Home Office guidance. Accordingly the REC advice is that members should undertake such ID checks.
If REC members decide not to implement an ID checking procedure for immigration purposes in line with Home Office guidance for their temporary workers, such a decision would be at their commercial risk and they must be aware that if a temporary worker is found to be in the UK illegally, the employment business (and their client) would not be certain of having a defence to an allegation of committing an offence under the Act. REC members deciding not to implement such ID checking procedures must inform their clients that they do not operate such checks because they may rely on you to do so. In addition, if an employment business chooses not to implement ID checks for immigration purposes, it is important to note they are still obliged to perform a mandatory lower grade ID check under the Conduct Regulations in any event.
The Home Office has informed the REC that they are committed to increasing their enforcement mechanisms under the Asylum and Immigration Act, so the REC’s advice to members is to make sure they have implemented the appropriate checks in order to give themselves and clients a defence in the event that they unwittingly fall foul of the law.
Under the Government’s 5 year strategy for immigration and asylum policy, announced on 7 February 05, there was a proposal for a new regime of workplace inspections for the purpose of tackling the issue of illegal working and a proposed new on-the-spot fine of £2000 for employers of illegal workers.
3. What are the requirements for checking the ID of work seekers when acting as agency i.e. providing permanent recruitment services or acting as a head-hunter?
Under the Conduct Regulations employment agencies are obliged to confirm the identity of all work seekers before introduction to their clients. Please see question 1 above for detail on the standard of ID check required for this purpose.
Whether a candidate seeking a permanent employment position has immigration permission to work in the UK is an important issue which should be clarified early in the registration process by an agency. The recommended question “Do you have immigration permission to work in the UK?” may be asked in a registration form or as part of a registration process.
It is important to note however, that permanent recruitment agencies who introduce candidates to clients for direct employment with their clients are not the “employer” for the purposes of the Asylum and Immigration Act 1996. Accordingly, it is not normal practice for permanent recruiters to undertake a formal check confirming immigration permission. In certain cases clients may ask you to carry out immigration ID checks on their behalf and if you do and the client relies on your checking procedures it may be possible for them to sue you to recover any fine or other payment if the steps were not carried out properly. Therefore REC members who act as agencies must make it clear to their clients, that the client and not the permanent recruiter is responsible for carrying out ID checks for immigration permission.
4. What documents do I need to see in order to confirm a candidate’s immigration permission to work in the UK?
In order to comply with the Home Office guidance on prevention of illegal working and to verify a work seeker’s permission to work in the UK, you should check, and copy one of the original documents from the following list:
List 1:
You may also comply if you check and copy a combination of two original documents from the following list.
List 2:
First combination
a) A document giving the person’s permanent National Insurance Number and name. This could be a: P45, P60, National Insurance card, or a letter from a Government agency.
Along with checking and copying A you must also check and copy one of the following documents listed B-H
b) A full birth certificate issued in the United Kingdom, which includes the name of the holder’s parents; OR
c) A birth certificate issued in the Channel Islands, the Isle of Man or Ireland; OR
d) A certificate of registration or neutralisation stating that the holder is a British Citizen; OR
e) A letter issued by the Home Office to the holder which indicates that the person named in it can stay indefinitely in the United Kingdom, or has no time limit on their stay; OR
f) An Immigration Status Document issued by the Home Office to the holder with an endorsement indicating that the person named in it can stay indefinitely in the United Kingdom, or has no time limit on their stay; OR
g) A letter issued by the Home Office to the holder which indicates that the person named in it can stay in the United Kingdom, and this allows them to do the type of work you are offering; OR
h) An Immigration Status Document issued by the Home Office to the holder with an endorsement indicating that the person named in it can stay in the United Kingdom, and this allows them to do the type of work you are offering.
Second combination
a) A work permit or other approval to take employment that has been issued by Work Permits (UK).
Along with A you must also check and copy one of the following documents listed B-C
b) A passport or other travel document endorsed to show that the holder is able to stay in the United Kingdom and can take the work permit employment in question; OR
c) A letter issued by the Home Office to the holder confirming that the person named in it is able to stay in the United Kingdom and can take the work permit employment in question.
Furthermore as well as checking and copying an original document from list 1 or two original documents in the prescribed combination from list 2, you must also satisfy yourself that the candidate is the rightful holder of the documents they present and that the document allows them to do the type of work you offer. You should therefore and take reasonable steps to check the following:
If the candidate presents you with two documents under list 2 which has two different names you should ask for further documentation to explain the reason for the inconsistency.
Finally the Home Office advises that you must retain a copy of the documents presented for at least three years after the worker has last worked for you.
5. What is the penalty for employing a worker who does not possess permission to work in the UK?
An employer found guilty of an offence under the Immigration & Asylum Act 1996 can be fined a maximum of £5,000 for each offence, i.e. per employee. A director, manager or similar officer of the employer company may also be guilty of an offence if it has been committed with his consent or is due to neglect on his part.
Under the Government’s 5 year strategy for immigration and asylum policy, announced on 7 February 05, there was a proposal for a new regime of workplace inspections for the purpose of tackling the issue of illegal working and a proposed new on-the-spot fine of £2000 for employers of illegal workers.
6. How can I interpret a work seeker’s passport stamp?
Passport stamps are not always clear and it is important to be able to interpret the stamp on a prospective worker’s passport, and/or the validity of any other documentation provided by the prospective worker.
The Home Office has a dedicated help-line for employers, which can be contacted on: 020 8649 7878.
Detailed guidance on the various passport stamps can be obtained from the Home Office from the following http://www.ind.homeoffice.gov.uk/ind/en/home/0/preventing_illegal.Maincontent.0014.file.tmp/full_guidance.pdf
The Home Office, supported by the REC, has launched an online toolkit which can assist agencies in checking overseas nationals ID documentation with step by step guidance. The toolkit can be found on the following website: www.employingmigrantworkers.org.uk.
7. Is there guidance on avoiding race discrimination in implementing ID checking procedures?
The Home Office has issued a Code of Practice for all employers on avoiding race discrimination in recruitment practice while seeking to prevent illegal working. This Code is to be updated later in 2005.
Section 8 of the Asylum & Immigration Act 1996 provides that employment should only be offered to those entitled to live and work in the UK. It is a criminal offence to employ an individual who does not have permission to live and work in the UK.
The Race Relations Act 1976 provides that it is unlawful to discriminate against a person on grounds of their race, directly or indirectly. Direct discrimination occurs where one individual treats another individual less favourably on grounds of their race than he treats or would treat other persons. For example, direct race discrimination would occur if a recruitment consultancy assumed that a candidate with an accent would not have permission to work in the UK and refused to find work for them.
Indirect discrimination arises when an employer applies a requirement or condition generally, but it is harder for persons from one racial group to satisfy, unless it is justified. For example, it may be unlawful indirect discrimination to register a job specifying that a filing clerk must speak English without an accent, when such a requirement is not needed to perform the job properly.
Difficulties have arisen for certain employers when questioning prospective candidates on their right to work in the UK when seeking to comply with Section 8 of the Asylum & Immigration Act 1996, particularly when employers failed to take into consideration the Race Relations Act 1976. This is apparent from reports to the Home Office which have shown that some employers have been accused of racial discrimination when seeking to avoid falling foul of the Asylum and Immigration Act 1996.The Code of Practice, therefore, seeks to strengthen the safeguards against discrimination by re-emphasising an employer’s statutory duty to avoid race discrimination in recruitment practices.
The Code of Practice sets out the following recommendation in avoiding racial discrimination:
Clear written procedures for recruitment and selection based on equal and fair treatment of all applicants; Assumptions should not be made about a person's right to work in the UK on the basis of their accent, colour, race, nationality or ethnic origin;
Enquiries should only be made in respect of an applicant's right to work in the UK and not their immigration status, as it could constitute unlawful racial discrimination. Therefore it is of the utmost importance that those dealing with matters at the sharp end of recruitment, i.e. those who are likely to be registering temporary workers, understand the inter-action between the provisions of Section 8 of the Asylum & Immigration Act, together with a basic understanding of immigration law and the obligations under the race discrimination legislation. It should be remembered that from December 2003, race discrimination legislation is extended to cover discrimination on grounds of religion or belief.
To ensure that there is no discrimination when registering applicants, it will be necessary to check the different types of permission that may be granted to applicants for employment and also current guidelines issued by the Home Office.
The best way to avoid operating a discriminatory recruitment policy is to treat all applicants equally at every stage of the recruitment process and by requesting details of the right to work of all prospective applicants;
Employers should monitor the outcome of recruitment and selection by the ethnicity of job applicants.
The Code is not legally binding and therefore failure to observe the Code is not a breach of the law. However, the Employment Tribunal is required to take the Code into account in any proceedings for race discrimination, if it is relevant. REC Members are, therefore, advised to adhere to the Code of Practice to ensure good recruitment practices.
Copies of the Code can be obtained from the CRE Distribution Services, Elliot House, 10-12 Allington Street, London, SW1E 5EH or can be down-loaded from www.ind.homeoffice.gov.uk under “Employer’s Information”.
8. Useful immigration contacts
An online toolkit, which can assist employers and recruiters in checking the ID overseas workers can be accessed: www.employingmigrantworkers.org.uk
Prevention of Illegal Working – Employers’ Help-line: 0845 010 6677
Home Office Immigration and Nationality Directorate:
Immigration and Nationality Directorate’s Enquiry Bureau: 0870 606 7766
For information on Work Permits and the Workers Registration Scheme see Work Permits UK
website: www.workingintheuk.gov.uk
Work Permits Enquiry Line: 0114 259 3792
Work Permits & Shortage Occupations: 0114 259 4074
For specialised legal representation/advice: Bates Wells Braithwaite, Solicitors specialising in Immigration: 020 7551 7777 (contact: Phillip Trott)
Information on visa requirements and forms for down-loading can be obtained from www.ukvisas.gov.uk.
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