On 1 May 2004, amendments to section 8 of Immigration and Asylum Act 1996 come into effect and will apply to all employees taken on from that date.

Katie Paxton-Doggett looks at the changes that will take place

Under section 8 of the Immigration and Asylum Act 1996, it is a criminal offence to employ someone who is not entitled to work or to do that particular job in the UK.

But there is a statutory defence for employers who check that new employees are permitted to work in the UK.

This can be done by checking documents listed in the legislation and held by the individual.

This is where forthcoming changes in the regulations will have the greatest impact.

The penalty for a section 8 offence is currently a maximum of 5,000 per employee.

Given the huge potential for profiteer-ing, this may be ineffective.

Although the government has stated that it is considering whether to increase the penalty, nothing has yet been done.

The Home Office claims that it is making the changes for three reasons:

- To make it more difficult for people who do not have permission to work to get jobs using fake documents;

- To make it easier for employers to check that the individuals they wish to employ are legally permitted to work;

- To make it easier for the immigration authorities to take action against employers who deliberately employ illegal workers.

To obtain the protection of the statutory defence under section 8, employers must check and copy either:

- One of the original documents from a first list - these are secure documents and include passports, identity cards, other travel documentation or residence permits issued by the Home Office.

- Two of the original documents included in a second list.

Many people will not have any of the documents included in the first list, including many British citizens.

Therefore, employers can accept a combination of specified documents.

These include, for example: a full UK birth certificate produced with a document giving the person's permanent National Insurance number and name; or a work permit issued by Work Permits UK along with a passport or other travel document endorsed to show that the holder is able to stay in the UK and can take the work permit employment in question.

Certain documents, which have been exploited by forgers, are no longer acceptable as proof of a person's right to work in the UK and will not provide part of the statutory defence.

They include:

- Home Office standard acknowledgement letter or Immigration Service letter stating that an asylum seeker can work in the UK;

- Home Office letter stating that the holder is British citizen;

- Passport describing holder as British Dependent Territories Citizen stating that holder has connection with Gibraltar;

- Short UK birth certificate that does not have details of one of parents;

- Card or certificate issued under construction industry scheme.

In addition to checking and copying the documents, the employer must take 'reasonable steps' to satisfy himself that the potential employee is the rightful holder of the documents and those documents allow the individual to do the type of work that is offered.

Any photographs and date of birth should be checked to confirm that they are consistent with the appearance and apparent age of the potential employee.

The expiry date on documents should not have expired.

If the documents provided under the second list have different names, a further document should be provided to explain the reason for this (for example, marriage certificate, divorce document, deed poll, adoption certificate or statutory declaration).

The Home Office's guidance for UK employers on changes to the law on preventing illegal working is available on its Web site (www.ind.homeoffice.

gov.uk) or by contacting the employers' helpline, tel: 0845 010 6677.

Nationals of the European Economic Area countries, consisting of the EU countries together with Iceland, Liechtenstein and Norway, have the right to move and work wherever they wish.

Similarly, since 1 June 2002, Swiss nationals have the same rights of free movement and employment.

Therefore, employers should also obtain documentation from prospective employees regarding their nationality proving that they have the right to work in the UK.

On 1 May 2004, ten countries will join the EU under the Accession Treaty.

Nationals of these countries will be able to move freely around the EU without immigration restrictions and work legally in the UK.

However, workers from eight of these countries - Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Slovakia and Slovenia - will be required to register under a new scheme.

The workers registration scheme will enable the government to monitor the numbers coming into the UK from the accession states and impose restrictions to protect the labour market if necessary.

Nationals from Cyprus and Malta need not register.

When dealing with an applicant from one of the eight listed countries, employers should provide the individual with evidence of their employment, either a contract or letter.

The employee must then make an application to register with the scheme and the employer should take a copy of the completed application form before it is sent.

This should be kept until the employer receives notification from the Home Office of the successful application, and the registration certificate retained.

If the Home Office refuses registration, the employee cannot be retained as a worker.

Additional information on the workers registration scheme can be found on: www.workingintheuk.gov.uk.

Various other measures are being implemented to tackle the problem of illegal working.

These include strengthened border controls to prevent illegal immigration and increased enforcement activity; additional funding for Operation Reflex; a new Immigration Office in Swaffham, Norfolk; Gangmasters (Licensing) Bill and Asylum and Immigration (Treatment of Claimants etc) Bill.

However, the government seems keen to introduce some form of national documentation so that 'proper checks' can be made.

David Blunkett said in March: 'In the longer term I believe that ID cards will make it possible to implement a more robust process and ensure that employers comply with the law.'

In the meantime, employers must take care in applying the requirements of section 8.

Clearly if an employer asks one prospective employee to provide documentation of their ability to work in the UK while failing to do so for the candidate who seems to be a British citizen, that would leave the employer unnecessarily exposed to a claim of racial discrimination.

The only sensible approach is to implement a system that treats all job applicants in the same way.

Katie Paxton-Doggett is a solicitor and producer of the Law Channel, Einstein Network