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APRIL 2008 |
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This material will shortly be available at our web-site (www.russell-cooke.co.uk) together with an archive of past updates. Topics this month: EMPLOYMENT – IMMIGRATION STATUS
EMPLOYMENT – IMMIGRATION STATUSImmigration status The Immigration Asylum and Nationality Act 2006 came into force on 29 February 2008 replacing The Asylum and Immigration Act 1996. The law aims to make it more difficult for illegal workers to remain in employment and strengthens the powers of the Border and Immigration Agency (BIA) to take enforcement action against employers. Two new offences have been created: the offence of negligently employing an illegal migrant with civil penalties of up to £10,000 per worker attached and the offence of deliberately employing an illegal migrant punishable with an unlimited fine and/or imprisonment. Trustees could be personally liable if there is neglect or connivance or consent to the employment. The Act makes it unlawful to employ anyone subject to immigration control who has not been granted leave to enter or remain in the UK or whose leave is invalid or has ceased. Someone subject to immigration control requires leave to enter or remain in the UK under the Immigration Act 1971. This excludes British and Commonwealth citizens with the right of abode, nationals of the EEA and Switzerland though EEA nationals from Bulgaria, the Czech Republic, Estonia, Hungry, Latvia, Lithuania, Poland, Romania, Slovakia and Slovenia may need to be registered or authorised to work. There is a defence, “the statutory excuse”, if the employer has checked a worker’s entitlement to work legally in the UK prior to employment and verified and retained copies of relevant documentation. The statutory excuse will not be available if the employer knew the worker was employed illegally at any point. To establish entitlement to work employers must check documentation from lists A and B in the statutory order. List A documents include passports or national identity cards saying that the holder is a British Citizen, a Commonwealth Citizen with a right of abode or national of the EEA or Switzerland and production of a list A document will be sufficient to establish a statutory excuse. List B contains documents that indicate the holder has restrictions on his or her entitlement to be in the UK and include a passport or travel document stamped with a work permit. It is for the employer to obtain sufficient documentation e.g. a birth certificate combined with a document listing a UK national insurance number or a work permit and a passport to establish ability to work. If relying on list B documents the employer must then re-check the documents at least once a year to ensure employees continue to have leave to enter or remain in the UK. The employer must take reasonable steps to verify and retain copies of the documents produced to them and if unsure of the validity of any document should contact the Employer Checking Service run jointly by the BIA and the Identity and Passport Service. Copies of documents must be made and stored for at least two years following the end of employment. If a civil penalty is imposed the level of penalty will take into account whether the employer has carried out full, partial or no checks. The BIA has issued a Code of Practice to help employers avoid unlawful discrimination. We recommend that the same checks should be applied to all applicants as part of the normal recruitment process to avoid suggestions of discrimination. A copy of the Code is available on the Border and Immigration Agency website: www.bia.homeoffice.gov.uk For further information or advice on suitable policies, please contact:
GOVERNANCE – SHELL COMPANIES AND LEGACIESCan you now get rid of shell companies which you have kept in existence to ensure you don’t lose legacies? You may now be able to close shell charities retained to prevent loss of legacies. Provisions have now been brought into force under the Charities Act 2006 to facilitate mergers and help ease the transfer of property to a merged charity. Future legacies and gifts will automatically be transferred provided the merger is registered with the Charity Commission on the Register of Mergers. On merging, trustees may now transfer property by making a declaration, without the need for any further documents of transfer. It is important to note, however, that not all property can be automatically transferred in this way. A merger can be registered no matter how long ago it took place by filling in a form with details of the merger. However, it is important to note that notification only applies to gifts taking effect on or after the date of registration of the merger or transfers on incorporation will be registered. The existing law takes its course in relation to earlier gifts to the transferor. Where a charity wishes to make use of these declarations, the Charity Commission must be notified of the merger so that it can entered it on the register. Unfortunately not all mergers can be registered once the charities involved have completed the transfer of all of their unrestricted property. An advantage of this new provision is that once the merger is registered, gifts and legacies left to a charity before a merger can transfer to the new charity. So a legacy under a will executed before the merger but falling due after the merger, will automatically pass to the new charity (section 75F). There are exceptions to this, however. These merger provisions apply to both charitable companies and unincorporated charities. There is further information on our website and on the Charity Commission’s website (the Charities Act 2006 amended the Charities Act 1993 sections 75 C, D, E and F). For further information, please contact:
PROPERTY – EMPTY RATES RELIEFFrom 1st April 2008 the level at which rates are to be charged on most vacant non-domestic properties are increased from 50% to 100%, making the ownership of empty property even more of a liability. Charities in occupation of a property are entitled to rates relief. Charities can obtain 80% mandatory relief from their rates bill, providing the charity uses the property wholly or mainly for charitable purposes and there is a discretionary scheme by which the remaining 20% can be applied for. With more challenging times imminent for the property sector, charities can use the fact that they would be able to take advantage of rates relief as a negotiating tool when looking for premises to occupy. An owner of property may consider allowing a charity into occupation of vacant premises, on beneficial terms if necessary, as this would provide a significant benefit to the owner as well as potentially improving the security of the property and making a high-profile contribution to the community. For further information, please contact:
EVENTSProgramme of Evening Seminars 2008 Wednesday 14 May 2008 For booking information please contact Janev Djemil on 020 8394 6372. Janev.Djemil@russell-cooke.co.uk
OTHER EVENTS The Trustee Conference 2008 – Thursday 26 June 2008 For more details and for booking information please follow this link http://www.russell-cooke.co.uk/serv_c&o_charities_events.htm The Employment Law Conference – Thursday 9 October 2008 For more information or to register for the conference please contact Janev Djemil on 020 8394 6372. Janev.Djemil@russell-cooke.co.uk The Charity Team We may on occasion e-mail you with details of Charity Team events. If you would rather not receive these separate e-mails please click here.
This material does not give a full statement of the law. It is intended for guidance only, and is not a substitute for professional advice. No responsibility for loss occasioned as a result of any person acting or refraining from acting can be accepted by Russell-Cooke. Copyright: Russell-Cooke, April 2008 To subscribe to this monthly legal update please visit http://www.russell-cooke.co.uk/serv_charities_intro.htm and fill in the online request form, or send an email including your name and email to, charitylegalupdates@russell-cooke.co.uk An archive of past updates can be found at http://www.russell-cooke.co.uk/serv_charities_updates.htm If you would like to reproduce some or all of our updates in your own publication, contact KATE SLATTERY on 020 8394 6458, kate.slattery@russell-cooke.co.uk
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