HR Law Auntie: Immigration Special

Dear Auntie,

I am the HR Manager at Office & Home Ltd.  We are a manufacturing company; approximately 20% of our 1,000 strong workforce comprises non-EEA nationals.  Most are employees, although we use some agency workers in warehousing roles.  I am confused by the publicity around new laws on preventing illegal working.  We have a well-established system in place to protect us from liability through inspecting and copying original documents before each employee starts work.  But I have read that the old laws have been repealed and our checks may no longer be enough to protect us.  I have also heard that immigration enforcement staff are checking employer premises, while well-meaning employers can find themselves landed with discrimination claims just for trying to be compliant.  It all seems a bit of a nightmare.  It will be the rubbish chute for me if we get caught employing illegals, so what can I do to keep safe?

Yours

A. Widget-Bolton, HR Manager

Dear Ms Widget-Bolton,

First, you need to know that the new law only applies to employment which started on or after 29 February 2008.  Second, bear in mind that the old law still applies where employment began before that date.  The steps you need to take in respect of “new” employees are set out below.  In respect of “old” employees, I am afraid there is not much you can do – if your checks were compliant at the time employment began, they still protect you today.  If not, they don’t.  For what it is worth, unless the illegal employment was deliberate, the immigration authorities are focussing their attention on “new” rather than “old” breaches.  Here are the points you need to consider in more detail. 

Legal liability – the new law

Sections 15-25 of the Immigration, Asylum and Nationality Act 2006 set out the new law.  There are two distinct breaches:  civil and criminal.  They only apply to employment which commenced on or after 29 February 2008.

By distinguishing between the careless and the ill-intentioned, and imposing a new continuing obligation to ensure legality, the new regime is arguably fairer and more flexible. However, it does necessitate some changes to ensure compliance.

The civil penalty

An employer who employs an adult subject to immigration control, who is not entitled to take that employment, or whose eligibility to be in that employment has lapsed, is subject to a civil penalty under Section 15 of the 2006 Act.  There is a maximum fine of £10,000 per illegal worker.  A Statutory Excuse is established by the employer if it has checked and retained copies of specified original documents, prescribed by the Home Office from time to time.  Currently, these documents reside in two lists, A and B (see “where to find more detailed information” below).  A document from list A establishes the excuse for the duration of the employment; from list B the excuse stands for a 12-month period only, with a timely re-check required unless a Section A document is subsequently inspected, copied and retained.  The civil penalty is aimed at the careless rather than the criminally intentioned employer. 

The criminal penalty

Section 21 sets out the criminal offence.  This is where an employer has actual knowledge that a worker is illegal.  Any statutory defence is overridden by actual knowledge.  The penalty is an unlimited fine and up to two years’ imprisonment.

Avoiding discrimination in recruitment

Under the old law on illegal working, a Code of Practice was introduced in 1999 to help employers avoid racial discrimination when seeking to comply with immigration legislation.  The line can be a fine one to tread.  The guidance recommended the avoidance of all obviously discriminatory practices, such as restricting inspection of documents and checks only to those workers who might look or sound “foreign”. 

This guidance has been updated and re-introduced in an amended format by Section 23 of the 2006 Act:  breach of the Code of Practice continues to be admissible in the employment tribunals. 

Discrimination issues in relation to non-EEA employees can occur beyond recruitment, of course.  For example, an employee in respect of whom you have undertaken compliant checks may still come to HR with information about their immigration status, or a change in it, which will give you cause for concern.  Because such issues can be fundamental to the employment relationship, and have the potential to affect sponsorship rating under the new Points Based system (see HRLaw Focus) the Home Office recommends that you take legal advice in such cases.  Auntie’s team here at Fox Williams is always available to help.

Legal liability – the new practical implications

Under the “old” regime, investigation and prosecution of illegal working usually followed a tip-off or other event bringing it to the attention of the authorities.  Under the new arrangements, a link with the sponsorship register (see HRLaw Focus) and greatly enhanced resourcing, means that employers can expect a much more pro-active approach from the Government.  “Account Managers” and other immigration staff will visit employer’s premises, and will have authority to inspect documentation to ensure that there are no illegal workers present.  They will be empowered to issue penalty notices where civil breaches are found.  This is a significant development reflecting an enhanced, pro-active approach and a much higher level of risk exposure for employers who fail to comply with the new law. 

Where to find more detailed information

The best starting point is to study the Home Office’s publications setting out the new law:

• What Employers Need to Know – new measures for preventing illegal migrant working
• Comprehensive Guidance for Employers on Preventing Illegal Working.  List A and List B are set out in this document. 
• Summary Guidance for Employers on Preventing Illegal Working
• Civil Penalties for Employers – Code of Practice
• Anti-discrimination Code of Practice for Employers.

All of these documents have been published by the Home Office in February 2008.

Legal advice is recommended where there are particular concerns about individual employee’s  circumstances.  The guidance covers all the key points that an employer needs to take into account. 

Anything else to bear in mind?

The law applies only in respect of employees, not contractors – unless they become your employee.  The Government does not expect employers to become experts in identifying fraudulent documents or sophisticated immigration scams.  Employers who implement the guidance sensibly and evenly, and do not have actual knowledge of anything amiss, have a good chance of avoiding trouble.  The most difficult cases are where new or worrying information comes to light unexpectedly.  Here, and in cases of doubt, advice should be sought promptly.