Employing People Subject To Immigration Control

The Previous Position

Section 8 of the Asylum and Immigration Act 1996 made it a criminal offence for an employer to employ a person who was not entitled to work in the UK. Section 8 created what lawyers call a strict liability offence. The employer’s only defence was to show that before the employment commenced, the employee had produced a document of a specified type proving the employee’s right to work in the UK, and the employer had duly recorded the contents of the document in the required manner.

On conviction of an offence under Section 8, the employer was liable to a fine not exceeding £5,000 (if convicted in a Magistrates’ Court) or a fine of unlimited amount (if convicted in the Crown Court). However, although Section 8 appeared fairly draconian, in reality there were only a small number of prosecutions under the section.

The New Law
With effect from 29th February 2008, Section 8 was replaced by Section 15 of the Immigration, Asylum and Nationality Act 2006. The basic obligations imposed on an employer remain much as they were. However, in place of the criminal offence there is now a system of penalty notices. The maximum penalty is £10,000. An employer may challenge a penalty notice by appealing to the county court.

Section 21 of the 2006 Act does create a criminal offence similar to Section 8. However, an employer is only guilty of an offence under Section 21 if he knowingly employs a person who is not entitled to work in the UK. This offence carries a maximum prison sentence of two years on conviction in the Crown Court.

It has already become clear that the new penalty notice system has real teeth. According to government figures, over 200 businesses have already been fined for hiring illegal labour. This is clearly an issue that employers ignore at their peril.

Beware Liability for Race Discrimination
In attempting to comply with his obligation not to employ a person who is not entitled to work in the UK, an employer must exercise caution. If he asks some, but not all, job applicants for proof of their entitlement to work in the UK, he runs the risk of a race discrimination claim under the Race Relations Act 1976. The safest policy is to require proof entitlement to work in the UK from all job applicants.

The Government has issued a Code of Practice providing guidance to employers on how to comply with their obligation to prevent illegal working without leaving themselves open to a race discrimination claim. This, together with other useful information on this topic, can be found at:
UK Boarder Agency

Stop Press
The government has recently announced that it intends to adopt a policy of naming and shaming in relation to businesses that employ illegal workers. The names of defaulting businesses will by posted on the UK Borders Agency’s website.

If you would like to know more about the rules relating to illegal working, please contact Nick Crook.

Filed: 25/06/2008 15:26:38