The Immigration, Asylum and Nationality Act 2006 (the "Act") essentially creates two new offences in relation to employees engaged on or after 29 February 2008 as follows:
- negligently employing an illegal migrant - a civil offence, which may result in the civil penalty (the "Civil Offence"); and
- deliberately employing an illegal migrant - a criminal offence, punishable with an unlimited fine and/or imprisonment (the "Criminal Offence").
Summary guidance (the "Guidance") on these new provisions has been issued by the Border & Immigration Agency ("BIA").
The Civil Offence
What Is The Civil Offence?
An employer will commit a Civil Offence where it employs an individual aged 16 or over, who is subject to immigration control (as determined under the Immigration Act 1971) and who does not have the right to legally work in the UK.
What Are The Consequences For An Employer If It Commits A Civil Offence?
An employer may be liable to a civil penalty of up to £10,000 in respect of every employee employed illegally. The penalty is calculated on a sliding scale with the award being determined on an individual basis in accordance with the circumstances of the case. Consequently, an employer who seeks to comply with the new rules (but fails) may initially receive a warning, whilst an employer who repeatedly offends may be liable for the maximum fine.
The new Code of Practice, "Civil Penalties for Employers", sets out factors that will be considered in determining the level of the penalty to be awarded. These include an employer's previous record of offences, the checks which have been undertaken (albeit that the employer has not strictly complied with the legislation) and its cooperation with the BIA. Whilst the Code is not legally binding courts must consider it where it is relevant.
How And When Is An Employer Informed Of Any Penalty Award?
On the spot penalty notices may be issued by BIA officials (usually Immigration Officers). A notice will contain the reason for the penalty, the amount and how it is to be paid, the date by which it must be paid (at least 28 days from the date it was issued) and how an employer can object to it where it considers that it is not liable, it has a "statutory excuse" (essentially a defence) or it wishes to resist the size of the award. If an employer fails to pay the penalty notice, it can be recovered by the Secretary of State as a debt.
How Can An Employer Establish A "Statutory Excuse"?
An employer will be able to establish a statutory excuse where it reviews documents to check a person's entitlement to work in the UK, verifies that documentation and retains copies of that documentation for at least 2 years after employment has ended. It appears from the Guidance that in all cases the excuse must be established before employment begins. In relation to those employees who are subject to restrictions on their right to work in the UK, this process must then also be carried out at least once every 12 months. However, the Guidance states that "The repeat checks can only enable you to retain the original excuse, as the excuse cannot be established after employment has started".
The legislation itself arguably appears unclear on whether the statutory excuse can in fact be made once employment has commenced (although an employer would presumably remain liable for the period up to that check). Best practice though would dictate that employers would be well advised to follow the approach proposed by the Guidance and ensure that systems are in place for carrying out this process before the start of every individual's employment.
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Checking A Person's Entitlement To Work In The
United Kingdom
To satisfy itself of a person's entitlement to work in the UK, an employer must see original document(s) from one of two statutory lists - "List A" where the employee is entitled to live and work in the UK without restriction or "List B" where the employee is subject to restrictions on his/her entitlement to live and work in the UK.
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Verifying Relevant Documentation
Employers are required to take all reasonable steps to verify the authenticity of documents produced and that the (prospective) employee is the rightful owner of the document(s). This includes checking the photograph, that any date of birth is consistent with the appearance in the photograph, that expiry dates for entering or remaining in the UK have not passed and that any visa covers the work to be undertaken. However, employers who inadvertently accept a forgery (or fail to identify that the employee is not the documents rightful holder) will only be subject to legal action if the falsity is reasonably apparent (i.e. if an individual who is untrained in the identification of false documents, examining it carefully, but briefly and without the use of technological aids, could reasonably be expected to realise that the document is not genuine).
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Retaining Copies Of Any Relevant Documentation
An employer must also retain securely, for at least 2 years after employment has ended, copies of the documents he has reviewed as evidence that he has undertaken the necessary checks. However, subject to this 2 year period, documentation should only be kept as long as necessary to ensure compliance. Save for passports/travel documents where only certain details need to be copied, the whole document should be copied and retained.
How Can An Employer Object To/Appeal A Penalty?
An employee can submit a notice of objection against a penalty award to the Secretary of State (within 28 days of the award) or issue a notice of appeal to the County Court. The Secretary of State can cancel, reduce or increase the penalty or decide no action should be taken in respect of it. In relation to an appeal, the County Court can cancel or reduce (but not increase) the penalty or dismiss the appeal. The Code of Practice on Civil Penalties will not be legally binding but must be considered.
The Criminal Offence
What Is The New Criminal Offence?
An employer will commit the Criminal Offence where it "knowingly" employs an individual who is aged 16 or over, subject to immigration control and who does not have the right to legally work in the UK.
What Are The Consequences For An Employer If It Commits The Criminal Offence?
Immigration officers have arrest, entry and search powers in relation to the offence. An employer may face up to 2 years' imprisonment and/or an unlimited fine.
Please note that an employer will be deemed to know a fact about an employee where a person, at the employer, responsible for an aspect of their employment knows that fact. Further, where an offence is committed by a company (or partnership), any director, manager, secretary or other similar officer of the company (or partnership) or any person purporting to act in such capacity, shall also be liable if the offence was committed with their consent or connivance or was attributable to any neglect on their part. Company directors convicted of knowingly employing an illegal migrant may be disqualified.
Race Discrimination
To assist employers in avoiding allegations of race discrimination, the BIA has issued a statutory Code of Practice entitled "Guidance for Employers on the Avoidance of Unlawful Discrimination in Employment Practice While Seeking to Prevent Illegal Working". Whilst it is not legally binding, it may be taken into account by an employment tribunal.
The Code recommends that employers obtain a statutory excuse for all potential employees (i.e. require all job applicants to prove their entitlement to live and work in the UK) as a way of escaping liability while at the same time ensuing consistent transparent and non-discriminatory recruitment practices.
Employees Commencing Employment Prior To 29 February
The old rules provided under s8 of the Asylum and Immigration Act 1996 still apply to employees who commenced employment prior to 29 February 2008. No civil offence exists but it will be a criminal offence for an employer to employ a person aged 16 or over, who is subject to immigration control and who is not legally entitled to work in the United Kingdom. An employer will have a defence where it has checked a person's entitlement to work before employing them (note there is no ongoing requirement to check every 12 months as is the case for certain employees under the new Act).
Practical Considerations
- Where you employ a large number of foreign nationals make sure you read the Guidance. Whilst not legally binding, it provides a helpful guide on how the BIA are interpreting the new requirements under the Act. We shall be happy to discuss this with you further.
- Ensure that your offer letters and any other recruitment documentation are updated to reflect the new requirement.
- Make sure that your recruitment procedures are updated - particularly bearing in mind the need for consistency of treatment with all applicants.
- Familiarise yourselves with the assistance available to you for verifying documentation. For example, the Employer Checking Service, run by the BIA and the Identity and Passport Service may be able to assist. We shall be happy to provide you with further guidance in this respect.
- Ensure that all individuals in your organisation responsible for any aspect of employment and/or any directors, managers, officers etc are aware that they must disclose any concerns as to an individual's eligibility to work in the UK and the procedure for doing so.
- Put procedures in place for ensuring that the checking, review and copying process is carried out every 12 months for those employees who have restrictions on their right to remain in the UK (i.e. they are required to produce documentation from List B).
- Consider whether practically you should still differentiate between employees who commence employment before 29 February and on or after that date. It may make sense for consistency and clarity to carry out 12 month checks on any employees engaged pre 29 February who also have restrictions on their right to remain in the UK.
- Ensure that appropriate checks are carried out on any employees acquired under the Transfer of Undertakings (Protection of Employment) Regulations 2006. The Guidance suggests that these checks should be carried out within 28 days of the transfer.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
