Pre-employment background checks needed for international employees

Research from a background screening provider has revealed that 40% of employers are not conducting pre-employment background checks on international employees. Chris Brazier, business immigration lawyer, highlights the importance of basic screening checks for all employers:

What are the basic screening checks that employers must carry out?

As a starting point, it is illegal to employ someone in the UK who does not have the right to live and work in the UK. The relatively simple mechanism for preventing illegal working is for employers to carry out right to work checks. If the employee cannot evidence their right to work, they should not be employed.

Whilst there is no express legal obligation to carry out a right to work check to prevent illegal employment the effect of failing to do so makes it a necessity. If an employer fails to do so before employment commences, the employer will have no defence to civil or, in the worst cases, criminal penalties and sanctions.

In summary, the right to work check requires employers to obtain the originals of prescribed documents (commonly the employee’s passport, driving licence and bank statements). Once these documents have been viewed in the presence of the employee to assess validity, copies must be taken and kept securely, with the date of the check clearly recorded on the documents.

In cases where an employee is subject to immigration control, the date of any follow up checks (e.g. when the employee’s visa will expire) must be recorded.

If this process is followed, the employer will secure a statutory excuse should the employee turn out to be an illegal migrant.

What are the risks associated with not conducting background checks – particularly in relation to international staff?

Employers who fail to complete right to work checks are taking a significant risk. The Home Office have various sanctions available to them, including:

• the right to impose civil penalties on employers up to a maximum of £20,000 for each individual who does not have the right to work. Details of the civil penalty will also be published on a public register;
• issuing a business closure notice for up to 48 hours where the employer has been convicted of employing illegal migrants or failing to pay a civil penalty; and
• in the worst cases, a criminal offence of knowingly or having reasonable cause to believe that the employee is an illegal worker. If convicted, the individual identified by the employer as responsible for the breach could face up to five years imprisonment. This sanction (along with the increased civil penalty threshold) was introduced in July 2016 and is a clear indication of the seriousness with which the Home Office treat illegal working. It is therefore surprising that so many employers are taking a chance with this.

For business immigration advice, contact Chris Brazier on 01753 278658 or email employmentlaw@bpcollins.co.uk.