Top lawyer provides home care sector with immigration advice

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Simon Kenny
Simon Kenny

Following the launch of ‘Operation Centurion’ by UK Visas and Immigration in June of this year, there is a perception that illegal working exists in the home care sector says Simon Kenny of Moore Blatch.

 

He advises businesses providing home care staff to be aware of immigration requirements and ensure that they are compliant should they receive an unannounced inspection.

 

There have been difficulties obtaining permission for carers to live and work in the UK for several years. The only immigration codes of practice which offer a realistic chance of sponsorship are for occupational therapists and for senior care workers, with applications for the latter only possible if the individual has been in the UK with permission to work before changes introduced on 6th April 2011.

 

All businesses are prohibited from hiring staff that do not have the correct permission to work in the UK. There can be severe consequences for employers that do not comply with these obligations, even if this should occur by accident. Following changes introduced in April 2014, companies can face fines of up to £20,000 per employee for having illegally employed workers and new obligations to monitor the status of student workers were introduced at the same time. A statutory defence to such a fine is available if a relevant document confirming permission to work has been copied, verified and retained by the employer.

 

Below Simon provides advice on some of the common pitfalls that companies need to avoid to ensure that they are compliant should they be subject to an immigration visit:

 

  • Carry out appropriate checks – all employers must ensure that a potential employee has the right to live and work in the UK before they actually start employment. A passport showing the person’s citizenship/immigration status or other appropriate documents must be requested and checked. Companies should not assume people are British citizens without seeing appropriate documentation.
  • Copy the correct documentation – it is quite common for driving licences or utility bills to be copied erroneously as evidence for permission to work. Make sure that your staff are aware of the correct documentation to keep on file.
  • Clearly establish the status of workers – the status of agency workers or those on temporary contracts is sometimes unclear. Immigration penalties relate to people who are employees of the organisation, as defined within employment law, rather than all those who physically work on the premises.
  • Establish an immigration compliance policy – for those employers with multi-site premises, it can be difficult to ensure these checks are made, before employment starts. Putting in place an immigration compliance policy and training staff on appropriate procedures will ensure all sites are aware of immigration issues.
  • Protect yourself against false documentation – people without permission to work can present false documents when undergoing checks. Employers must make a reasonable effort to ensure a document is genuine, relates to the individual concerned and confirms the person’s permission to work.

Within the care sector, UK Visas and Immigration have operational instructions not to make an entirely unannounced visit. The Care Quality Commission (or Care Inspectorate, CSSIW or RQIA if in Scotland, Wales or Northern Ireland) should be told of the relevant agency or care home the immigration authorities wish to visit and both organisations should agree to the action before it proceeds. In many circumstances, there will be meetings in advance of the visit to the agency or home to plan the care of the impacted patients and ensure that a suitable care plan exists. It would not be usual for the governing body to advise the institution concerned of the visit in advance, however; as far as the agency or home is concerned, the visit is without notice.

 

The immigration officers undertaking a compliance visit should follow the procedures within the Police and Criminal Evidence Act when conducting any search of the premises. The officers will seek relevant evidence to establish if any immigration offences have been committed. That could include, for example, inspection of physical evidence of their terms of employment, payroll records and HR records.

 

As regards the potential liability of the agency, whether the statutory defence is accepted on behalf of the employer is likely to be the key issue which determines whether there is a penalty and its level. It is recommended that, if a check has been undertaken, this should be shown to the officer at the compliance visit to establish that the company had tried to ensure the individual concerned held the correct permission to work and that as far as the company is aware, had been working within the terms of that permission.

 

Simon concludes: “By putting in place sensible procedures for immigration compliance, companies will feel more confident if they are subject to a visit and will be able to show that they have done all that is required of them, which will go a long way to protect them against any penalties.”

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