On January 1, 2007 Bulgaria and Romania became part of the European Union. The scheme for Bulgarians and Romanians (A2 member states) is not the same as the Workers Registration Scheme for nationals of the A8 member states (the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Slovakia and Slovenia) who joined the EU on 1 May 2004. Whilst Bulgarians and Romanians are free to travel to the UK they are not free to work here unless they have prior permission in the form of a registration certificate or an accession worker card, or fall under one of the exceptions to this rule e.g. married to or in a civil partnership with a British or non Romanian/Bulgarian EU national. The rationale behind this uncomfortable distinction between A8 nationals and A2 nationals is to ease the emerging pressures on housing, education and the labour market.
Employers must therefore still apply for work permit permission to employ Bulgarian and Romanian nationals under one of the standard schemes. Instead of immigration permission, the worker then applies for an accession worker card, without which any employment will be illegal. Highly skilled workers can qualify under the current HSMP criteria, without needing to meet the English language requirement. The worker will then need to obtain a registration certificate which will state no restrictions on employment. Students who wish to work must apply for a registration certificate and on receipt are eligible to work for the standard 20 hours per week.
The cost of missing this vital difference is not just a price of a flight home for the worker. It is a criminal offence to employ someone without permission and can lead to fines of up to £5000 per illegal worker. Those convicted of working without authorisation may also be imprisoned for up to three months or fined up to £5,000, or both. The Government expects employers and workers to fulfil their responsibilities or suffer the consequences. The Government has also stated its commitment to reviewing the law around illegal working which is likely to make the consequences of employing workers illegally worse.
Follow the top tips below and this should provide you with a defence if you are found to have employed a Bulgarian or Romanian or any other workers illegally:
For New Recruits
- Immigration checks should be built into your normal recruitment processes for all employees. You may be able to avoid liability for employing someone illegally if you have carried out certain checks, following statutory requirements, before he/she starts work. Checks should enable you to flush out candidates who do not have proper permission so that you can then either take steps to obtain the right permission before employing them or not employ them at all.
- Simply carrying out the checks is not enough to avoid criminal sanctions. You need to meet the following requirements:
- If you complete the checks, discover the candidate does not have permission but employ him/her anyway you would be liable. The defence only works if you genuinely believe that the employee can work for you.
- Make sure you ask to see the right paperwork. Only certain types of documents are adequate and in some cases you will need to see more than one document. Check the requirements with your immigration advisor.
- You must take reasonable steps to check the documents. This means you should look for the following:
- Check the photographs look like the candidate.
- Check that the details on different documents are consistent, for example, the date of birth and name. If the name is not consistent ask for an explanation since names can change on marriage.
- If the candidate appears to have a visa, check it is valid and that it enables him/her to do the job offered. For example, students can work but only within certain parameters. Don’t forget that a work permit granted to different employer is not transferable to your business.
- If the candidate is relying on a visa, check the dates are still valid.
- You must keep copies of the relevant documents in a secure place. The Home Office recommends you keep them for three years after employment has ended so that if you are investigated you can demonstrate to the Home Office that you did in fact carry out the checks.
- If you are at all unsure about the documents you have seen and what they mean for you the employer, always check. Don’t rely on the employee’s word.
- Check the immigration status of all candidates. A person’s accent or the colour of their skin is not a reliable indicator of nationality. Candidates who are treated to their detriment by being subjected to checks when others are not can bring race discrimination claims against you even if you never employ them. It’s a gift to a potential claimant arguing that his/her race, ethnicity or nationality influenced your decision not to make a offer of employment if you are carrying out checks only on non-white employees or those with “foreign” accents.
- If you discover that you have employed a Bulgarian or Romanian national without permission, take immediate action so as not to compound the problem. The Home Office is more likely to take a lenient approach if you act swiftly once you realise your mistake. The actions you take will depend on whether you want to continue to employ the individual if you are able to obtain permission. You need to consider carefully the balance between keeping employee and the immigration authorities happy. You are not obliged to pay an employee working illegally since the employment contract is void but you may wish to do so for a short period while an application is pending. If you do wish to retain someone you should suspend them from work (without pay if you choose) and take immediate steps to try and obtain permission to continue working with you. Otherwise you can ask the employee to leave without notice or payment in lieu of notice. Even if the employee has over one year’s service, it is not unfair to dismiss someone who is working illegally.