Immigration Compliance Audits - What employers need to know

Immigration audits are conducted by the Workplace Relations Commission (WRC) in the Republic of Ireland and governed by the Director General under the Workplace Relations Act 2015. WRC inspectors, made up of just under 200 civil servants of the Department of Enterprise, Trade & Employment (DETE)[1] ** visit workplaces to undertake inspections to ensure compliance with employment-related legislation including the Immigration act 2004.

In 2020 there were 7,700 employment rights/RTWS inspections and 40 compliance notices issued to businesses[2]*

From an immigration perspective, with changes in the new normal of our working patterns, greater scrutiny is being placed on ensuring employers are correctly and accurately tracking the immigration permissions of their non-EEA workforce.

Why are inspections instigated?

These visits can be triggered by a number of reasons. These can include a complaint from employees, by order from the labour courts or by the Department that will issue employment permits if they believe there is non-compliance.

What power do the WRC inspectors hold?

The powers of the WRC inspectors can be wide reaching as they apply to equality and employment legislation (beyond looking solely at immigration compliance), therefore, employers should be prepared to grant access to property such as records and documents relating to employment as well as having the ability to organise interviews with current and former employees.

• To enter premises with reasonable notice given, where employment activities are being carried out
• To enter premises with reasonable notice, where documents or records are being kept, which is why it is imperative that copies of employee’s immigration documents are stored securely within the island of Ireland
• To remove any above mentioned documents or records as required for conducting the inspection under the WRA 2015
• To interview any persons believed to be have been an employer or employee and require them to answer any questions relating to the employment and to make a declaration as to the truth of the statements given.

What to expect during the inspection

Employers will generally be sent an advance written notice of the impending inspection, any challenges to having the inspection on the proposed time should be communicated to the inspector as soon as reasonably possible.

WRC advise that an employer should have employment records for all employees organised and readily available for review of the inspector, including alerting the inspector in advance of the inspection if these records are being held off-site from where employment activities are normally carried out. This is relevant from an immigration perspective where traditionally hardcopy employment permits may be reviewed by the inspector. With advance conversations, there may be agreement to review these as a soft copy where they are stored in a different location.

After an initial high-level inspection of records, the inspector can also request any relevant records for inspection. After review, an inspector may request to interview a sample of employees which is often followed up with a meeting with the employer to present their preliminary findings.
If it is found that the employer has been compliant, a written confirmation will be issued and the inspection will be concluded. If areas of concerned have been found the WRC will follow up with the employer with further questions to investigate further.

Impact of for non-compliance

Where an employer is found to be in breach of a non-compliance, the WRCs can issue legal sanctions which can involve, but is not limited, to compliance notices and fixed penalty fines. The WRC can also prosecute individuals who refuse to comply with the law or to co-operate with the inspection. Generally the WR will allow an employer time to provide further information or remedy the situation where possible. As noted in ‘ILLEGAL EMPLOYMENT OF NON-EU NATIONALS IN IRELAND’ by The Economic and Social Research Institute, although the WRC has the power to prosecute both employers and employees, they will usually focus solely on the employer.[3]

We have seen the reputational impact for companies where they have been found to have employed foreign nationals without the correct permission. It can also have a significant impact in the company being able to hire non-EEA nationals into the company and also apply for or retain trusted partner status (which allows for expedited processing of employment permits)

Employer Call to Action: from an immigration perspective, what can employers do to ensure a compliant inspection?

There are a number of best practice steps that employers can undertake:

• When on-boarding non-EEA nationals, as they require immigration permission, the employer should ensure that correct and up to date immigration permissions are noted on file. This is generally termed as “right to work” documentation
• Ensure that copies of these documents (where permitted under GDPR) are kept in an organised fashion and hard copies are kept securely and readily available if an inspection is called
• To make sure tracking systems are kept up to date, so a renewed permission copy is uploaded onto the system in a timely manner to ensure no immigration permissions fall out of validity
• To undertake yearly ‘soft’ internal audits to make sure there is no gaps in records
• At promotion cycles; any changes in job roles, job titles or salaries are reviewed to ensure applicable notifications are made to the immigration authorities• When employees terminate employment, their permission, where applicable, is surrendered to the immigration authorities in a timely manner

 The WRC have issued an “Employers Guide to inspections” which is useful resource located here.

In Deloitte, we support clients with health checks on their employee populations and immigration audits to ensure that they maintain compliance when employing non-EEA nationals in Ireland. We can also advise companies as they set up on the processes and systems we recommend to ensure the correct records are retained and the processes set up to support corporate immigration.

We will also support when a WRC inspection is ongoing and we have attended a number of audits with our clients in the past. Finally, we also have developed technology with our clients regarding the right to work onboarding process. We have found that onboarding employees correctly and compliantly at the start has a significant cost and time saving for employers.

Our tool, GoVerify, empowers new hires to self-authorise their right to work, ensuring global compliance for the employer. Through automation and a well thought out experience, gone are the days of photocopying, stamping and delaying the start to work.

- Chelsea Abraham, Manager, Immigration

References

1. Annual Report 2020, WRC
2. Annual Report 2020
3. Illegal employment of non-EU nationals in Ireland
4. https://www.workplacerelations.ie/en/publications_forms/corporate_matters/annual_reports_reviews/annual-report-2020.pdf
5. https://ec.europa.eu/home-affairs/sites/default/files/14a_ireland_illegalemployment_final_en_0.pdf