Checks for staff employed from 1 May 2004 to 28 February 2008

This page explains the law on preventing illegal working in relation to staff who were employed from 1 May 2004 to 28 February 2008, including details of employers' responsibilities to check their prospective employees' entitlement to work in the UK.

Section 8 of the Asylum and Immigration Act 1996 came into force on 27 January 1997 and was repealed on 29 February 2008.

The criminal offence provided by the 1996 Act

Under the 1996 Act, it was a criminal offence to employ a person aged 16 or over who was subject to immigration control and had no permission to work in the UK, or who worked for you in breach of their conditions of stay in the UK.

The defence against conviction provided by the 1996 Act

The 1996 Act enabled employers to be prosecuted for employing illegal migrant workers, but it also allowed employers to establish a statutory defence against conviction for doing so. Employers could establish the statutory defence by carrying out specific checks on the original documents of prospective employees.

The Immigration (Restrictions on Employment) Order 2004 strengthened this legislation by tightening the lists of documents that employers were advised to check, eliminating documents which had proved vulnerable to forgery and requiring specific combinations of documents to be seen.

The documents that should have been checked for staff employed from 1 May 2004 to 28 February 2008 were described in the guidance booklets published by the Home Office in April 2004. You can download these from the Guidance documents page.

Employing European Economic Area nationals

Employers should have asked all EEA nationals to confirm their nationality by producing a document from the lists described above. Additionally, nationals of Bulgaria, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Romania, Slovakia and Slovenia may need to be registered or authorised to work. Details of worker registration and authorisation for these nationals, including exemptions, were in the guidance booklets published by the Home Office in April 2004. You can download these from the Guidance documents page.

Penalties for employing illegal migrant workers

If you employed an illegal migrant worker from 1 May 2004 to 28 February 2008 and did not establish a statutory defence, you could still be prosecuted and fined up to £5,000 per illegal worker in a Magistrates' Court (or Sheriff Court in Scotland). Section 6 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 made the summary offence triable either way, which means that there is no upper limit to the level of fine that can be imposed on employers if convicted on indictment under the 1996 Act. Therefore, if you employed an illegal migrant worker from 1 October 2004 to 28 February 2008 and did not establish a statutory defence, you could still be prosecuted and receive an unlimited fine in a Crown Court.

Under the Accession (Immigration and Worker Registration) Regulations 2004, an employer can be fined a maximum of £5,000 per illegal worker if they continue to employ an unregistered non-exempt A8 worker after one month and have not retained a copy of their Home Office application form and do not receive a certificate of registration. An employer can also be fined for continuing to employ an A8 worker if they have been notified by the Home Office that their application has been refused.

Under the Accession (Immigration and Worker Authorisation) Regulations 2006, an employer can be fined a maximum of £5,000 per illegal worker for employing a non-exempt Bulgarian or Romanian who does not have permission to undertake the employment in question from 1 January 2007.