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When is a Passport and a National Insurance number not enough evidence to employ someone legally?

November 13, 2011

There has been much media advertising regarding the penalties of employing someone illegally with fines of £10,000 per illegally employed person or up to 2 years imprisonment for the employer.

It is vital to check that someone can legally be employed to work for you before you engage them and it is up to the employer to check that the person they employ has the leave of right to work in the UK. Statutory checks include ensuring that someone has a national insurance number, their name, address, date of birth and either their P45 from their previous job or a P46 to be signed by the new employee upon engagement. The other check would be to have a copy of their passport. Most employers would believe that having done all this and ensuring that the proposed new member of staff is an EU national that this would mean that they have complied in full and that they are employing someone totally legally.

However, there is an exception. On 1st May 2004 10 new countries joined the EU, Cyprus, Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia and Slovenia. The British government at that time decreed that all these new member countries would be given full leave of right to work in the UK completely free of any ties. The government, in hindsight very wrongly, believed that only around 40,000 migrant workers would enter the UK to seek employment. What actually happened was around 600,000 migrant workers flocked to the UK.

After this considerable error of judgement, when Romania and Bulgaria joined the EU on 1st January 2007 their nationals were given only restricted access to employment in the UK. One way that they could gain full rights to work in the UK was if they worked as an au pair for a year. Applicants could come to the UK and after sending in a detailed application form to the UK Home Office with supporting evidence (i.e. a letter of invitation from their host family, a letter from their UK placement agency, a police check report and medical certificate) they were usually granted their purple workers accession card. Once they had worked as an au pair for 12 months they could then apply for their blue card certificate which gives them unrestricted access to work in the UK.

However, Bulgarian and Romanian nationals are permitted to come to the UK and work on a self employed basis, under the yellow card scheme. In order to do so they need to obtain a national insurance number. Employers who are not aware of the previous information in this article could well find themselves in the situation of illegally employing someone without realising if they take on a Bulgarian or Romanian national, after checking that they are members of the EU, by checking their passport and being given their national insurance number. The only way to ensure that you do not get caught in this trap is by ensuring that you also take a copy of their blue card certificate which gives them the right to work in the UK without restriction. If they do not have one then you cannot legally employ them.

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