The statutory defence is an employer's defence against a charge of employing an illegal migrant worker. The defence is established by any employer who checks and retains copies of specified documents, before employing a candidate.
The defence is not available if it is shown that the employer knew that employment of an individual would constitute an offence under section 8.
How can I obtain the Statutory Defence?
If you have followed the recommended steps in obtaining and checking documentation, then you should be satisfied that you are employing all of your workers legally.
If you are unable to establish a defence
If you have followed the recommended steps and the job candidate cannot provide the required documentation, then you are entitled to refuse employment to that person. If the post does not need filling urgently, you may decide to keep the post open to allow the job applicant time to produce the appropriate documentation.
It is important to bear in mind that the purpose of the legislation is to prevent illegal migrant working, not to act as a barrier to the employment of those who are legitimately entitled to work in the UK.
For further advice, you may want to contact the Employer's Helpline on 0845 010 6677. You may also want to look at the information on legislation around Work Permits, employing Highly Skilled Migrant Workers and other resources contained within the working in the UK website.
If you are satisfied that you've seen, checked, copied and retained the copy of the appropriate documents then you will have established your statutory defence against prosecution
Who in the organisation is held liable for employing someone illegally?It is the 'employer' who commits the offence and it will depend on the circumstances who that might be. It may, for example, be a named individual, an organisation or each partner in a partnership.
The appropriate documents must be checked to make sure they're valid. For examples of passport stamps to help you check, go to the working in the UK website.