Keeping in check

Reports that officers of the UK Border Agency recently raided the home of the former housekeeper of the Attorney General, Baroness Scotland, have left employers wanting to understand the consequences of hiring an illegal worker.

On 15 May 2007, the minister of state, Home Office (Baroness Scotland of Asthal) made an announcement heralding a proposed Illegal working action plan (https://www.publications.parliament.uk). The key measures of that plan included a sponsorship system to ensure that employers take responsibility for whether their workers comply with the immigration rules and penalties for those who break them '“ specifically a proposed new system of civil penalties and a new criminal offence.

Media reports recently indicated that Baroness Scotland has been fined £5,000 for employing an illegal worker. Ministers explained that the penalty imposed on the Attorney General was due to an 'inadvertent' or 'administrative' error.

'Administrative' errors can be very costly. What steps should employers take to ensure that they do not fall foul of the law?

Who do the offences apply to?

Under the Immigration, Asylum and Nationality Act 2006, an employer of an illegal worker may be liable to a civil penalty or commit a criminal offence.

The offences relate only to individuals who are employed 'under a contract of service or apprenticeship, whether express or implied and whether oral or written' (section 25(b) of the Immigration, Asylum and Nationality Act 2006).

1. Civil penalty

A civil penalty may be imposed if an employer negligently employs someone without the right to undertake the work for which they are employed. The secretary of state can issue a notice of liability to pay a civil penalty of a specific amount to an employer who employs an individual who is:

• subject to immigration control;
• aged 16 years old or over; and
• not entitled to undertake the work for which they are employed.

The civil penalty can be up to £10,000 per illegal worker. The guidance states that: 'Civil penalties are calculated on a sliding scale. The final amount that the employer is required to pay will be determined by officials on an individual basis, according to the circumstances of the case' (Home Office, Border and Immigration Agency, 'Prevention of Illegal Working '“ Comprehensive Guidance for Employers on Preventing Illegal Working' (2008) page 5).

Once a civil penalty has been administered, it is recorded on a public register and usually on the news section of the Border Agency web page. A recent example from the UK Border Agency demonstrates the extent of the naming and shaming of non-compliant businesses.

Three failed asylum seekers from Iran were caught by UK Border Agency officers cracking down on car washes in Spalding, south Lincolnshire. The news section named three car wash business and their business addresses.

All three car washes were issued with on-the-spot penalty notices for employing illegal workers and each may each now face a fine of up to £10,000. To avoid this, they must prove to the UK Border Agency that they carried out the correct right-to-work checks for employing workers from outside the European Union.

2. Criminal offence

A criminal offence will be committed if an employer knowingly employs an individual who does not have the right to undertake the work for which they are employed. Conviction could lead to an unlimited fine and/or a prison sentence of up to two years.

Objecting to a civil penalty

If you or your business are subject to a civil penalty it is important that you seek specialist legal advice, as there is a procedure whereby employers can object to the civil penalty (section 16 of the Act). To do so the employer should complete a notification of an objection to a notice of liability for a civil penalty form, with evidence and representations. An employer can object if they believe:

• They are not liable to the imposition of a penalty.
• They are excused from paying because they have established a statutory excuse.
• The amount of the civil penalty is too high.

An employer can also appeal against a civil penalty (section 17 of the Act). There are strict time limits as to when an appeal can be brought, and it can prove to be an expensive procedure as the appeals are heard in the county court.

Reporting your suspicions

There is another procedure whereby employers can report any suspicions that they have of an employee's entitlement to work in the UK to the employers' helpline (0845 010 6677). If reported prior to a visit by an immigration official a sum 'may' be deducted from the amount of penalty due. When you call the reporting line you will be given a call reference number, which you must refer to when applying for a reduction.

The statutory excuse

An employer is excused from paying a civil penalty if they are able to show that they complied with any prescribed requirements in relation to the employment of an individual (section 15 (3) of the Act).

The guidance provides: ''¦you will have an excuse against liability to pay a civil penalty for employing an illegal migrant if you check and copy certain original documents before someone starts working for you. If the person has a time limit on their stay in the UK, you will also have to carry out repeat checks on their documents at least once a year to have the excuse' (comprehensive guidance, page 5).

Original documents

The employer must request and the individual must provide certain original documents to establish their eligibility to undertake the work on offer. The documents which are required vary, depending on whether the person is subject to immigration control. Employers should consult the detailed comprehensive guidance for more information (page 21).

For example, the guidance states that: 'A passport stating that the holder is a 'citizen of the United Kingdom and Colonies' will only be acceptable if it includes the words: 'holder has the right of abode in the United Kingdom'.'

Employers should remember to ask for original documents and check, check and check again that you have the correct documents; and also remember to take copies.

If you have a job applicant who has specific restrictions on his or her visa you should consult the guidance. Many businesses have not taken specialist advice or put into practice a specific illegal working/identification verification policy, and as a consequence they may be placed in a precarious position when there is a knock on the door by immigration officials.

Many employers will be surprised to know that a driving licence issued by the DVLA is not sufficient proof of the right to work in the UK and neither is a permanent NI number when presented in isolation. You will not be popular if you enter the boardroom to announce that as a direct result of having not carried out identification checks the company could be fined up to £10,000 per illegal worker, and the company will be named and shamed on a public register.

Employers are not expected to be experts in counterfeit passports or visas. The guidance provides that: 'If you are presented with a false travel document or visa, you will only be required to pay a civil penalty if the falsity is reasonably apparent.'

The government has issued a code of practice to help employers comply with the law and undertake the checks without discriminating against individuals on the basis of their race (https://www.bia.homeoffice.gov.uk/employers). The advice from the government is to treat all job applicants in the same way at each stage of the recruitment process and ask prospective employees to present their documents before they commence employment. The guidance states: 'You should not make presumptions about a person's right to work in the UK on the basis of their background, appearance or accent' (comprehensive guidance, page 12).