By Laura Devine, Laura Devine Solicitors, London


New penalties for employing illegal workers

From 29 February, new criminal and civil penalties under the Immigration, Asylum and Nationality Act 2006 (the 2006 act) will come into force. These new penalties will affect recruitment and employment practices in the UK and it is therefore vital that employers are aware of these changes and how they will impact on their business. The changes are part of the government's determination to be seen to be tackling illegal immigration in the UK, aided by the introduction of the points-based system (PBS) this year.





Employers' liability

Under section 8 of the Asylum and Immigration Act 1996, it is a criminal offence to employ a person aged 16 or over who is subject to immigration control who has no permission to work in the UK, or whose employment is in breach of their conditions of stay in the UK. This includes European nationals whose nationality must be proven and any requirements, such as registering on the Worker Registration Scheme, must be adhered to.



Successful prosecution under the 1996 act in a Magistrates Court could result in a maximum fine of £5,000 per illegal worker. The Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 made the summary offence triable either way - therefore an employer can be prosecuted and receive an unlimited fine in a Crown Court.



The current law under the 1996 act enables employers to be prosecuted for employing illegal migrant workers, but section 8 of the act allows the employer to establish a statutory defence against conviction. The defence is established if the employer has carried out the required checks of the potential employee's original documentation and is satisfied that employees have the required immigration permission. Copies of the documentation must be kept for the employer's records. The Immigration (Restriction on Employment) Order 2004 tightened the list and the combinations of documents that employers must check and attempted to eliminate documents that had proved vulnerable to forgery.



Section 8 and the required document checks will continue to apply to workers recruited between 1 May 1997 and 28 February 2008.





New responsibilities

On 15 May 2007 the government carried out a public consultation on the implementation of new powers contained in the 2006 act. Results of the consultation were published in November 2007 with two draft codes of practice.



The new responsibilities will apply to staff whose employment began on or after 29 February 2008. Section 15 of the 2006 act will introduce a new system of civil penalties for employers who employ illegal migrant workers and it is proposed that the maximum civil penalty for each illegal worker will be £10,000. The draft code of practice on the new civil penalties proposes a sliding scale, which will be determined by different criteria such as the nature of the checks the employer has conducted, reporting suspected illegal workers to the Border and Immigration Agency (BIA) and the number of offences previously committed. The actual civil penalty will be determined by the BIA case by case. Similar to section 8, employers can establish a statutory defence under section 15 by checking and copying the employee's specified documents.



The code of practice sets out the specified checks and the lists of documentation. The employer will be required to undertake basic visual checks to ensure that the documents relate to the potential employee by comparing any photographs in the document(s) and dates of birth against the appearance and apparent age of the potential employee. The employer must also check that any government endorsements entitle the potential employee to undertake the type of work on offer and that no expiry dates have passed.



The new penalty system is intended to reflect a proportionate approach to non-compliance while also serving as a sufficient deterrent to employers who will be unwilling to risk their profits and reputation by using insufficient employment practices. Employers will have the right to object to the BIA or appeal to the courts if they believe that the service of a civil penalty is unjust.



Under section 8 of the 1996 act, the employer is only required to check the potential employee's documents as evidence of their right to work before employing the individual. The 2006 act will introduce a continuing responsibility for employers of migrant workers with a time-limited immigration status to check their documents to establish their ongoing entitlement to work in the UK at least once every 12 months. This will involve checking the employee's documents regularly and potentially questioning the employee on their current situation, including their family situation if the employee has dependants in the UK or is in the UK in a dependant status.





Identity cards

The UK Borders Act 2007 is set to implement new powers to roll out compulsory biometric identity cards for foreign nationals who are residing in the UK for six months or more. The identity cards are expected to be a reliable method of identifying that the holder is the person they say they are, and that they are entitled to take the employment being offered. The cards will enable the government to phase out the documentation contained in the document checklist.



Section 21 of the 2006 act will introduce a new criminal offence for employers who knowingly employ illegal migrant workers in the UK, carrying a maximum two-year prison sentence and/or an unlimited fine. In addition, as is currently the case, the statutory defence will not apply where an employer knows that they are employing an illegal migrant worker. Prosecutions are costly and time-consuming and are therefore likely to remain low, but it is expected that action against employers will increase due to the ease of issuing civil penalties as opposed to criminal.



Comprehensive guidance on the current legislation is provided by the BIA, and this guidance will shortly be revised to cover the new legislation. A three-week radio and newspaper advertising campaign ran in January to build awareness of the changes.





Points systems

These changes come as part of the government's introduction of the PBS, which is being rolled out on 29 February. Under tier two of the PBS, which should be implemented at the end of this year, employers will be required to be licensed by the BIA before they can act as a sponsor for migrant workers. The sponsoring employers will be given an 'A' or 'B' rating depending on various factors relating to their employment practices. Once licensed, the sponsor will be able to apply for certificates of approval, which they can allocate to migrants they would like to employ.



As set out in the BIA's statement of intent, the system of sponsorship requires those who directly benefit from migration to play their part in ensuring that the system is not abused. All licensed employers will therefore be required to fulfil certain duties. In addition to the document checks required under section 15 of the 2006 act, employers will also have to keep a record of the sponsored migrant's contact details, including their address and mobile telephone number. Employers will also be entrusted with reporting duties, which include reporting to the BIA within ten working days if the migrant worker is absent from work for more than ten working days without the sponsor reasonably granting permission.



Employers should ensure that the migrant worker meets the requirements of the PBS category under which they are applying before a certificate of sponsorship is issued, and that the worker is likely to comply with the conditions of their leave. This may prove difficult.



In addition to the civil and criminal penalties, sponsoring employers who are identified as dishonest or incompetent and who are not fulfilling their duties may be downgraded or may have their licences withdrawn. For example, this means that an employer who has not carried out the correct document checks could be fined up to £10,000 and could be downgraded from an A- to a B-rated sponsor. The grading will be shown on a public register.



The BIA believes that the changes being introduced by the 2006 act and the PBS will not significantly alter employers' responsibilities in relation to migrant workers. Employers are already required to check documents to establish the statutory defence under section 8 of the 1996 act, but the ongoing liability throughout the individual's employment and the further questioning that may need to be undertaken to establish the statutory defence impose a great level of responsibility on the employer. In response to the initial consultation, concern was also expressed that the ongoing checks would pose an additional financial burden in terms of time to the employer.



The government is concerned that the new measures may have a greater impact on smaller businesses and will therefore review the impact in 12 months' time. It will be interesting to see the effect the new legislation has on illegal working and how the added responsibilities of employers impacts on their businesses.



Jenny Stevens, a solicitor at Laura Devine Solicitors, also worked on this article