Changes coming into force on 29th February 2008 will see a much stricter penalty scheme for employing illegal workers, to be followed by the replacement of the current work permit system with a new "points based system" over the next 12 months.
The Immigration, Asylum and Nationality Act 2006 ("the 2006 Act") imposes, via the Immigration (Employment of Adults Subject to Immigration Control) (Maximum Penalty) Order 2007 and the Immigration (Restrictions on Employment) Order 2007 new provisions.
The Act makes it unlawful to employ an adult subject to immigration control if they do not have valid leave to enter or remain in the UK and who doesn't have permission to do the work offered. The new provisions are:
- A new system of civil penalties for employers who engage illegal immigrant workers with a maximum penalty of up to £10,000 for each illegal worker (previously £5,000 under the Asylum & Immigration Act 1996). Such an employer in breach may be served with a civil penalty notice, although he may be excused from paying any penalty if he can demonstrate compliance with the "statutory excuse" (see below);
- An employer will be excused from paying a penalty if it has complied with the relevant provisions set out in the legislation concerning the production by the prospective employee of particular documents and compliance by the employer with various other requirements (some of which are new), including taking all reasonable steps to check the validity of the document(s) produced; and retaining copy documents securely for not less than 2 years after the employment has ended. NB: Such excuse will not apply to an employer who knew that such employment was illegal;
- A continuing "investigative" responsibility for employers to check the ongoing entitlement for certain migrant workers to work in the UK at least once every 12 months. It will therefore be important for employers to have a system of diarising and tracking employees' immigration status from the outset;
- A new criminal offence of "knowingly" using illegal migrant labour, carrying a maximum 2 year prison sentence and/or an unlimited fine. An employer will commit an offence if found to be employing a person knowing that he is subject to immigration control, unless that person has a current and valid permission to be in the UK and has valid permission to do the type of work offered.
There are also two new Codes of Practice which have been issued by the Border & Immigration Agency and come into effect on 29th February 2008:
(i) A Code of Practice entitled "Civil Penalties for Employers" which sets out the factors which will be taken into account when determining the level of penalty to be imposed. The Code can be accessed here: ; and
(ii) A Code of Practice entitled "Guidance for Employers on the Avoidance of Unlawful Discrimination in Employment Practice While Seeking to Prevent Illegal Working" which aims to provide employers with guidance on how to avoid a civil penalty for employing an illegal migrant worker, in a way that does not result in unlawful race discrimination. The Code can be accessed here:
Disclaimer
The material contained in this article is of the nature of general comment only and does not give advice on any particular matter. Recipients should not act on the basis of the information in this e-update without taking appropriate professional advice upon their own particular circumstances.
