The Government is worried about how the public perceives illegal immigration and wants everyone to know it is tackling the issue. Even Nigel Farage says that the latest mobile billboard campaign telling migrants without the right permission to “go home or get arrested” is going too far. Most employers know that it is unlawful to employ an individual who does not have the right to work in the UK, or who is working in breach of his or her conditions of stay in the UK. But the compliance requirements and legal risk behind this principle can be complex. Just as employers have got used to one regime, the Government is consulting on changing it again.
Prevention of Illegal Working – Where Are We Now?
In February 2008 the Immigration, Asylum and Nationality Act 2008 retained the criminal offence of “knowingly employing an illegal worker” but also introduced a civil penalty which made it easier for the Home Office to impose sanctions on employers who had broken the law through carelessness. New liabilities were introduced for employers who:
1. employ individuals that do not have the appropriate permission to work; and
2. who failed to carry out the procedures designed to prevent illegal working.
The new laws were widely seen as a measure by which the Government sought to transfer the responsibility for policing migration from the authorities to employers. And it has been successful to this end. Employers have put in place new policies and procedures, and in some cases hired new teams of staff, to ensure that they are compliant. Those within organisations who are responsible for immigration compliance are just beginning to become comfortable with the legislation and the requirements that it imposes on their business.
The Consultation – Proposed Changes
The consultation, which opened last month, proposes changes that the Government hopes will strengthen and simplify the existing civil penalty scheme. There are concerns that, as with many Government attempts to “simplify” immigration, we may end up with more confusion and complexity.
Headline proposals are:
1. The civil penalty is currently set at a maximum of £10,000 per illegal worker. The proposal is to increase the civil penalty to £20,000 per illegal worker.
2. When deciding upon the appropriate level of a civil penalty the Home Office will no longer credit an employer with a “partial” document check (i.e. where an employer has some evidence of right to work documents on file but these are not compliant with all of the requirements). The Government considers that employers have had sufficient time to become familiar with the requirements. However, it is possible that not all employers will be comfortable that all of their files, including those relating to employees recruited soon after the changes in 2008, will have complied fully with the checking requirements.
3. To reduce the number of acceptable documents for the purposes of the right to work checks. This may leave people who were previously able to comply with the requirements, and, indeed, who do have the right to work, unable to produce an acceptable document. There is no guidance proposed from the Home Office to provide comfort that if an employer refuses to employ in these circumstances they will not be exposed to discrimination claims on the grounds of national origin.
4. That the requirement to check annually the permissions of those with a time limited right to work in the UK will be scrapped in favour with a requirement to check only on the expiry of the permission. On the surface, this reduction in burden on employers is to be welcomed. However, there is no guidance as to the extent of the obligation on employers if they become aware of circumstances which could have led to a change in the permission of a worker during their employment (for example a student quitting their course). In the absence of the annual check, employers will need to know whether they will be required to take reasonable steps to follow up such information.
5. That directors or partners will be held personally liable for civil penalties to allow recovery action against them if the business does not pay.