New fines for employing illegal workers

Updated by Gherson on Wednesday 28 November 2007. | | |
As part of the implementation of its Illegal Working Action Plan on 22 November 2007 the Border and Immigration Agency announced new measures inflicting severe fines upon employers who knowingly hire illegal workers. These comprise  two orders enforcing  the regime set up by sections 15 to 26 of the Immigration and Nationality Act 2006. They will come into force on 29 February 2008.
 
The Immigration (Employment of Adults Subject to Immigration Control) (Maximum Penalty) Order 2007 fixes the penalty for employing someone in contravention of section 15 (2) of the 2006 Act at a maximum of £10,000. 
 
Penalties for employers who employ illegal workers are not new. The Asylum and Immigration Act 1996 (at section 8) created an offence of strict liability under which employers could be fined up to £5,000 per illegal worker. The Act did however provide them with a defence. If an employer had seen and had copied a document (the documents are specified and include a UK passport describing the holder as a British citizen, an EEA passport, a residence permit issued to an EEA national or a registration card indicating that the holder is entitled to work in the UK) shown to him or her by the prospective employee, the employer was not liable for the offence of employing an illegal worker. 
 
The penalties imposed by the Asylum and Immigration Act 1996 also did not apply to employers using the services of a self employed person under a contract for services.   By mid 2003 there had been 34 successful prosecutions. 
 
The deficiencies of the regime were highlighted in the UK Parliament’s Select Committee on the Environment, Fisheries and Food’s report on gangmasters – following the tragic events of February of 2003. The committee stated that it was “appalled by the lack of priority given” to gangmasters and their activities and that no significant resources had been allocated to this form of illegal working. 
 
The Immigration (Restrictions on Employment) Order 2007, which was laid before Parliament on 22 November 2007, provides a defence for employers based upon the employer’s making copies of documents shown to him or her by the employee prior to the commencement of employment, which is similar to that which was available under the 1996 Act.   The crucial difference is however that there is now a duty on employers to “take all reasonable steps to check the validity of the document”.  
 
This requirement which effectively imposes investigative role on employers closely resembles that imposed on owners of ships or aircraft by the Carriers’ Liability Act 1987. By that regime, under which Carriers are subjected to heavy fines if they allow improperly documented passengers to travel to the UK the government has been able to prevent persons seeking asylum from boarding aircraft bound for the UK.
 
Interestingly when what became section 8 of the 1996 Act was being debated concerns were expressed that such measures would entrench racism and would drive illegal working further underground. It remains to be seen whether similar objections will be raised to this legislation – which needless to say goes further in punishing employers who fail to make the necessary checks on those they employ.