We will make it easier for the Immigration Service to prosecute non-compliant employers”. Baroness Scotland, House of Lords, 11 February 2004.
Baroness Scotland has suffered the indignity of a £5,000 civil penalty for employing an illegal worker, under law which she helped to frame as Home Office Minister, and is now responsible for as Attorney General. Some facts are disputed, but the case highlights the risk and complexity inherent in an important but often misunderstood area of law which affects all UK employers. This month, HR Law explains the legal background, tries to make sense of some of the unanswered questions, and offers some top tips for avoiding trouble. After all, you did not get to draft the legislation, and your boss might not be as understanding as Baroness Scotland’s if you get it wrong.
The Key Players
Patricia Janet Mawhinney, Baroness Scotland of Asthal, PC, QC, Attorney General of England and Wales has three primary public functions: guardian of the public interest, chief legal adviser to the Government and ensuring that the Director of Public Prosecutions does his job properly. She is also Ministerial Champion for “Narrowing the Justice Gap” – bringing more offenders to justice – and her brief includes “taking action to appeal unduly lenient sentences”. 
Loloahi Tapui, Baroness Scotland’s former Tongan housekeeper, cuts a less august and substantial figure. Paid just 27p per hour above the national minimum wage, she will not have had access to the circles of power and influence reserved to her ex-employer, and we might regard her reliability with some scepticism as she smiles from the pages of a Sunday newspapers and is “advised” by Max Clifford. She admits having stayed in the UK illegally, and is under active investigation by the UK Border Agency. However, she clearly believes that she has a story to tell.
UKBA, the UK Border Agency of the Home Office is responsible for border security, migration control, enforcement of immigration law and granting immigration permission. It receives legal advice from the Attorney General.
Illegal working – the law
The “old” law
Statutory penalties have been in force since January 1997 for UK employers who employ a person subject to immigration control who does not have permission to do that job. The original legislation, under Section 8 of the Asylum and Immigration Act 1996 (“the 1996 Act”), was passed by the last Conservative government (so is not quite the New Labour nannying of employers recently projected by the media). Under the 1996 Act, all such employment was a strict liability criminal offence – in other words, ignorance of the illegality was no defence. To balance this, the legislation introduced a “statutory defence” if the employer could show that, prior to the employment commencing, it inspected, copied and retained copies of a prescribed original document or documents (such as a passport, Home Office letter, National Insurance number card or official government document showing a permanent N.I. number) – which appeared to be genuine, valid, to relate to the person and establish the right to work. Those documents were set out in a schedule published by statutory instrument and in Home Office guidance for employers from time to time. Actual knowledge of illegality defeated the defence.
There were fundamental flaws in the operation of the 1996 Act:
·         The original list of documents was poorly thought through, to the extent that those determined to enter employment illegally could easily dupe an unwitting employer – who would still have the statutory defence if it had examined and copied the documents set out in the schedule then in force. 
·         A one-off, pre-employment check was sufficient to protect an employer for the duration of the person’s employment, even if a change of job duties or a change or expiry of immigration status undermined the legality of their employment or stay in the UK. 
·         After New Labour came to power, the philosophical landscape changed; the new Government saw immigration as a “magic bullet” to address perceived labour market needs amid the dot.com boom and economic good times. The Government cut back on illegal working-related investigation and enforcement, and the law was little used in practice.
·         Even so, some employers were so worried about the stigma of criminality, and draconian fines and imprisonment, that they imposed excessive checks on employees who looked or sounded “foreign”, while ignoring others. Like Baroness Scotland, they struggled to understand their actual legal obligations to inspect and copy. In doing so, they exposed their organisation to direct or indirect race discrimination claims. The Government tried to address this via a statutory Code of Practice on avoiding discrimination in recruitment, inserted into the 1996 Act by Section 22 of the Immigration and Asylum Act 1999. The key principle was treating all prospective employees, regardless of known or perceived immigration status, in the same way in relation to document checks. Breach of the Code was admissible in the employment tribunals.
In practice, Section 8 was largely ineffective.    On the one hand, the one-size-fits-all criminal sanction was too blunt and heavy an instrument, while on the other, feeble and under-resourced investigation and prosecution efforts meant it was rarely used. In the years following its introduction, illegal working increased significantly.
Important note: the active provisions of Section 8 as amended are still in force in respect of employment which commenced between 27 January 1997 and 28 February 2008.
The “new” law
The law which Baroness Scotland helped to make, and then managed to break, was designed to address the weaknesses in Section 8 while sending a tough message to employers. The Immigration Asylum and Nationality Act 2006 (“the 2006 Act”)  introduced two new provisions, which took effect for employment commencing on or after 29 February 2008:
·         Section 15 imposes a civil penalty on employers who unknowingly employ those who require immigration permission for the role, and lack it. It is distinct from Section 8:
o           the penalty is civil, not criminal, and imposes a sliding scale of fines, not imprisonment;
o           there is a statutory excuse (rather than defence), based on a revised schedule of documents for inspection of documents, and copying and retention of copies, which establish the right to work; List A documents establish an ongoing entitlement, List B documents a time-limited one;
o           in order to maintain the benefit of the statutory excuse, employers must re-check employees who are subject to time limited immigration status at least every 12 months, until such time as they can produce a List A document establishing that time limits and other restrictions on the right to work are removed.
Section 15 is similar to Section 8 in that:
o           Following provisions (Section 23) retain a Code of Practice on avoiding discrimination in recruitment, with similar principles to the earlier Code;
o           the statutory excuse is defeated by actual knowledge of the illegality, which also triggers the more serious criminal offence set out in section 21:
·         Section 21 introduces a new criminal offence of knowingly employing an illegal worker, with serious penalties including imprisonment.
·         The offence binds an “officer” of the employer as well as the body corporate, which includes a director, partner, manager or secretary and anyone purporting to be one.
The UKBA investigation found that Baroness Scotland did not knowingly employ Ms Tapui illegally.
The undisputed facts
·         Loloahi Tapui entered employment with Baroness Scotland on 30 January 2009. Any illegality would therefore fall under the “new” law. 
·         As Loloahi Tapui admits, she had no right to work at that time because whatever permission she previously had had long since expired. 
·         Had Baroness Scotland inspected an original document or documents which appeared to be genuine, to relate to Loloahi Tapui and to establish in accordance with the published UKBA guidance that she had the right to work, and retained copies, she would have had a full statutory excuse and not have breached the law – unless she knew that the documents were false or that the permission was no longer valid. 
·         Baroness Scotland admits that she failed to copy and retain copies of documents, which is why she received a civil penalty of £5,000 under the civil penalty regime. 
·         Baroness Scotland did not receive the maximum fine of £10,000. UKBA found that she had undertaken a partial check and cooperated with its investigation, thereby qualifying for a reduction under the sliding scale. 
The disputed facts
·         Baroness Scotland claims that she was shown an original passport which appeared to meet all the requirements of UKBA guidance and show valid, ongoing immigration permission. She says that her only failure was not to copy the passport.
·         Loloahi Tapui says that she never showed any passport to Baroness Scotland, just other documents including her marriage certificate. It was reported last weekend that Ms Tapui had obtained a forged passport stamp. 
·         The nub of the dispute is whether a forgery was shown to Baroness Scotland, who would not necessarily have recognised it as false, and if so would have been fully protected had she photocopied it.
Some questions answered (or not)
Q:   If Loloahi Tapui is married to a British citizen (she claims that her marriage certificate to British solicitor Alexander Zivancevic was amongst the original documents given to Baroness Scotland), why can she not live and work legally in the UK?
A:   Just getting married to a UK citizen does not confer automatic immigration entitlement. The non-UK spouse has to apply for an entry clearance visa (from outside the UK) or leave to remain (from within the UK). The application will not succeed if (as Ms Tapui admits she has) the applicant has committed a significant breach of UK immigration law. In addition, it is not possible to “switch” in-country from many categories to spouse of UK national. 
Q:   What immigration status did Baroness Scotland believe Ms Tapui had?
A:   At the time of writing, we simply do not know. Baroness Scotland has not told us, and the UKBA statement on the case omits reference to it. This falls into the area of dispute – Baroness Scotland says that she saw a passport purporting to contain an immigration status which would have allowed Loloahi Tapui to work as a housekeeper. Ms Tapui says that she did not produce any passport at all, just other documents which, again, may or may not have been sufficient if inspected and copied, depending on what they were. 
Q:   Baroness Scotland likens her fine to a congestion charge penalty. Have I been worrying too much about compliance with anti-illegal working legislation?
A:   No, you have not. Baroness Scotland was the employer in this case, can easily afford the fine and is apparently immune to any reputational damage. You probably work for someone else, whose reputation and ability to employ other migrant workers may be compromised by your mistake. For example, if your organisation is a licensed sponsor under the Points Based System, the licence may be suspended, withdrawn or subject to additional conditions if there is a breach of anti-illegal working law. 
Q:   Baroness Scotland is the Government’s chief law officer, yet has apparently failed to understand and observe a piece of law which she helped to introduce. Why has she not resigned?
A:   HR Law can answer most questions, but this one has us stumped!
And finally, some top tips:
·         ensure that your recruitment policies, offer letters and contractual documentation reflect your obligation to check the immigration status of all prospective employees by reference to List A and List B as set out in the Government’s comprehensive guidance, and that you retain confidential copies on the HR file in every case; 
·         ensure that you diarise re-checking, at least every 12 months, of all employees with time limited immigration status and whose employment commenced on or after 29 February 2008;
·         ensure that you observe the Code of Practice on avoiding discrimination in recruitment when conducting anti-illegal working checks. This is good practice, and breach of the Code is admissible in the employment tribunals;
·         do take anti-illegal working seriously. Baroness Scotland may have tried to play down her fine as akin to a congestion charge penalty, but she has already said that she is “bitterly, bitterly sorry” (although not, at the time of writing, sorry enough to resign). She can easily afford the fine, and it may be weeks before we can assess the reputational impact properly. Unfair as it may be, an equivalent breach is likely to cost your organisation more dearly on all fronts;
·         UKBA’s summary and comprehensive guidance on avoiding illegal working, and the Code of Practice on avoiding discrimination in doing so, are available on the UK Border Agency website at www.UKBA.homeoffice.gov.UK/employers/preventingillegalworking. If you have not got to grips with them yet, now is the time.
·         If you think you have an illegal working problem, or your employee checking is deficient, take advice. There are sensitive employment law and liability issues to manage. Address it – before UKBA does.
 
 
Matthew Davies is a partner in the employment department at Fox Williams LLP and can be contacted for more information on this feature at mdavies@foxwilliams.com
Articles are correct at the time of publication.
 
28 September 2009
© Fox Williams LLP

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