Franchisees Beware: Illegal Workers May be Fooling You
Franchisees Beware: Illegal Workers May be Fooling You
This blog is triggered by the unfortunate experience of an IBB client who, regrettably, became a victim of fraud and got caught in the cross fire between the Immigration Enforcement department and an illegal immigrant who they happened to employ in good faith.
The client is a food chain franchisee. I will call the company Grilled and Tasty (‘GT’) for the sake of this blog. As with many other food chains they rely on relatively low-skilled labour; the company employs school leavers, students and some workers from outside of the EU – the categories of employees who are considered high-risk in the eyes of immigration control. We have all probably read the press talking about raids on illegal workers at Byron burgers last summer and regular shake-ups of favourite Chinese restaurants and other establishments.
Our client performs checks on rights to work for each employee by checking passports, visas and regularly asking employees for evidence that they had applied to extend their visas prior to expiry. Unfortunately, something had been missed that resulted in GT being served with a Civil Penalty Notice for employing an illegal worker.
Looking at the facts of the case, one can only be sympathetic. GT checked permission to work prior to the employee in question starting work. I would like to call the employee Ms X. Prior to the expiry of the Ms X’s visa, GT requested evidence that Ms X made an application to the Home Office to extend her visa. In response, Ms X showed a letter from ‘Home Office, UK Border Agency’ confirming that an application for further leave to remain had been received.
A few months later our client was contacted by the Home Office. In their letter, the Home Office provided general advice to GT to be aware of their obligations not to employ a worker who has no right to work. It further advised the company that they should disregard the letter if GT was satisfied that their employees had rights to work. Naturally, since GT believed that Ms X had made an application for the extension of her visa, they did not take any further action.
Unfortunately, the client came to seek our help only after receiving a notice to pay a civil penalty amounting to £10,000. Having conducted an investigation, the Home Office informed GT that Ms X had no right to work in the UK. They did not explain the reasons why they reached this conclusion. We looked at the employee’s HR file and it became quickly apparent to the trained eyes of the immigration experts that the Home Office letter which was produced by Ms X to show that she made an application to extend her visa was fraudulent.
A long story short – GT did carry out the right to work checks. They relied on common sense and acted in good faith. They did not possess (and are not expected to possess) the expertise of an immigration lawyer. GT could not be expected to spot that the ‘Home Office UK Visas & Immigration’ hasn’t been called ‘Home Office UK Border Agency’ since 2013 and that the department uses a different font in their correspondence.
However, our client’s fault was that they failed, unknowingly and unintentionally, to follow the procedures for checking rights to work which are set out in 15 separate guidance documents, each on average 30 pages long, and which have been put together by the Home Office over the past 9 years!
Please speak to an immigration specialist to manage your compliance on Preventing Illegal Working regulations. We won’t take long, but we will check your processes to make sure they are all in good order. At the end of the day, it will cost less than a fine.
Contact our employment and immigration law experts today
Please speak to an immigration specialist to manage your compliance on Preventing Illegal Working regulations. Contact us today on immigrationteam@ibblaw.co.uk or 03456 381381 to see how we can help you with your immigration matter.
