IAS agrees that no employer should take on those not lawfully entitled to work. The present guidance to employers from the Border and Immigration Agency (BIA) is sixty pages long and complicated. It sets out the list of documents that employers must check in order to successfully defence a claim that an employee is not entitled to work, some of which are sufficient in themselves, others which need to be in different combinations.

In this consultation, the Home Office propose to introduce an additional check that employers will need to make if they wish to retain the statutory excuse against incurring a civil penalty. These additional checks concern employees who have limited leave to remain in the UK. It is proposed that if the individual produces a document or documents as specified in the Home Office list, the employer should perform specified document checks prior to the commencement of employment and follow-up checks at specified intervals. Should the employer follow this procedure, they retain the statutory excuse and avoid a civil penalty.

IAS suggest that rather than intimidating employers with more threats and civil penalties, shifting the burden of proof on the employer, unlike in criminal law, the Home Office should make it simpler for employers to find out if an employee is prevented from working by setting up a database comprising of people not entitled to work.

IAS is concerned that in particular small employers have neither the time nor money to make complicated checks and it is possible that they will discriminate against those who appear to be foreign by not employing them despite the existence of the Code of Practice preventing unlawful discrimination and desperate need for workers whom they cannot find from within the indigenous workforce.