Checking the identity of temporary agency workers
All recruitment businesses need to check the identity of workers registering for work finding services. In addition employment businesses supplying temporary workers need to check everyone's right to work in the UK.
Under the Conduct Regulations both agencies and employment businesses are obliged to confirm the identity of all work seekers before introduction or supply. From 29 February 2008, the government changed the regulations regarding checking documents for this there are 2 categories of documents, lists A and B:
List A documents establish that the person has an ongoing entitlement to work in the UK,
List B documents indicate that there are restrictions on the worker's right to be in the UK.
Recruitment agencies must carry out the appropriate checks of the documents to establish a Statutory Excuse (the "excuse") against payment of a civic penalty for employing an illegal worker.
What you need to check
To establish the Excuse, you must:
At least one of the documents listed below from either List A or B; and
Take reasonable steps to satisfy yourself that they are valid and genuine (e.g. are not out of date, not forgeries, and actually belong to the person in question); and
Copy the documents in question in a permanent non-alterable way (e.g. photocopy), and keep a record of those documents and the copies for the duration of the employment plus a further 2 years thereafter. For passports, you should copy the front cover, and any pages containing the holder's personal details, and any page containing any endorsements (noting any important dates of expiry etc).
Finally, remember that you will not have an Excuse by virtue of doing the above if you actually know that the person is not permitted to do the job in question.
Government guidance for employers can be found at UK Border Agency | Support for employers and Prevention of Illegal Working - Comprehensive Guidance
List A:
For documents in List A, a one-off check prior to employment is sufficient, that check being valid for the duration of the employment. The relevant documents are:
A passport showing that the holder is a British Citizen, or has a right of abode in the United Kingdom.
A document showing that the holder is a national of a European Economic Area country or Switzerland. This must be a national passport or national identity card.
A residence permit issued by the UKBA to a national from a European Economic Area country or Switzerland or a member of their family.
A Biometric Immigration Document issued by the UKBA to the holder stating that they can remain indefinitely in the UK or have no time limit on their stay.
A passport or other travel document endorsed to show that the holder can stay indefinitely in the United Kingdom, or has no time limit on their stay.
An Immigration Status Document issued by UKBA indicating a right to remain in the UK when produced in combination with official documentation giving a permanent NI number and their name, issued by a Government Agency or a previous employer.
A full UK birth certificate including the name of at least one parent in combination as above.
A full adoption certificate in combination as above.
A birth certificate issue in the Channel Islands, Isle of Man or Ireland in combination as above.
An adoption certificate as above.
A certificate of registration of naturalisation as a British Citizen in combination as above.
A UKBA letter indicating indefinite leave to remain in combination as above.
Note
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.
Detailed guidance on the various passport stamps can be obtained from the UKBA:
List B:
List B documents should be checked at least once every 12 months as well as prior to the commencement of employment. Failure to repeat the checks may result in the loss of protection of the Excuse. . The relevant documents are:
A passport or travel document showing that the holder is allowed to stay in the UK and do the type of work in question, provided it does not require a work permit.
A UKBA Biometric Immigration Document stating that the holder can remain in the UK to do the work in question.
A work permit or similar from the UKBA when produced in combination with a passport or travel document endorsed to show that the holder is allowed to stay in the UK and do the work in question, or a similar letter.
A certificate of application issued by the UKBA to or for a family member of a national of an EEA country or Switzerland less than 6 months old stating that the holder is permitted to take in combination with evidence of verification from the Immigration Agency Employer Checking Service.
A residence card or document issued by the UKBA issued to the family member of an EEA or Swiss national.
An Application Registration Card issued by the UKBA stating that the holder is entitled to take employment when produced in combination with evidence of verification by the Border and Immigration Agency Employer Checking Service.
An immigration status document from the UKBA indicating that the holder can stay in the UK to so the work in question when produced in combination with an official document giving the holder's NI number and name, issued by a government agency or a previous employer.
A letter from the UKBA to the holder, employer or prospective employer, indicating that the holder can stay in the UK to so the work in question when produced in combination with an official document giving the holder's NI number and name, issued by a government agency or a previous employer.
What is the penalty for employing an illegal worker?
An employer found guilty of an offence under the Immigration, Asylum and Nationality Act 2006 can be fined a maximum of £10,000 for each offence, i.e. per worker. 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. Someone who knowingly employs a non-entitled worker may be liable to an unlimited fine and/or prison sentence of two years.
Summary
Any one of the documents, or combination of documents described in List A or List B will provide you with a statutory excuse if you take reasonable steps to check the validity of the original document and that the person presenting the document is the
rightful holder, then make a copy of the relevant page, or pages before employing an individual. For identity cards, passports and travel documents, a copy should be taken of:
• the document's front cover; and
• any page or side (in the case of identity cards) containing the holder's personal details including nationality, his or her photograph, date of birth and/or signature; and
• any biometric details; and
• the date of expiry; and
• any relevant UK immigration endorsements.
Other documents should be copied in their entirety. All copies of documents should be kept securely. If your potential employee gives you two documents which have different names, ask them for a further document to explain the reason for this. The further document could be a marriage certificate, a divorce decree, or a deed poll document. By doing this, the Border and Immigration Agency will be able to examine your right to the statutory excuse if they detect any illegal migrants working for you.
If reasonable steps are taken to check the validity of a document or documents from List A, the statutory excuse will have been established for the duration of the employment and no further checks will be required.
Each time that a document or combination of documents from List B is provided, you must note the date on which you carried out the original document check. In order to retain your excuse against a penalty for employing that individual, you must carry out a follow-up check at least once every 12 months after the initial check. Again, this will involve asking the employee to produce a valid original document, or documents either from List A , or from List B and copying it for your records. If a document, or documents, from List A are subsequently presented and reasonable steps are taken to check the validity of the document or documents, the statutory excuse will have been established for the remainder of the employment and no further checks will be required.
Please note the references to the provision of a National Insurance number in Lists A and B. The provision of a National Insurance number in isolation is never sufficient for the purpose of establishing a statutory excuse. The National
Insurance number can only be used for this purpose when presented in combination with one of the documents, as appropriate, specified in Lists A and B. All references to the documents issued by the Home Office in Lists A and B, also include documents issued by the former Immigration and Nationality Directorate (IND) and Work Permits (UK).
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