Consultation over new powers to prevent illegal migrant working

The Immigration Asylum and Nationality Act 2006, part of the reform of the immigration system, contains a number of powers to tackle illegal working by nationals of countries outside the EEA. Before these provisions are brought into force, the Home Office is seeking views on its proposals to implement new powers.

New powers

Section 8 of the Asylum and Immigration Act 1996 makes it an offence to employ someone who is not entitled to work in the UK. However, an employer will have a defence if it has seen one of a specified list of documents. The 2006 Act will strengthen the law on the prevention of illegal migrant working by replacing the controls under section 8 with a new, tougher, section 15.

As with the existing system, there will be a statutory defence against the offence of employing an illegal worker where the employer has checked and copied one of certain original documents, or a specified combination of original documents, before employing that person. Provided the employer makes the checks, it will not be liable to a penalty even if the employee is subsequently found to be working illegally.

The new provisions will not make a major difference to the types of checks that employers are required to carry out to meet their responsibilities except that employers will need to repeat these checks at specified intervals for those employees who have limited leave to remain in the UK.

In addition, under the current law, there is no distinction between less than diligent employers and employers who deliberately and criminally employ illegal migrant workers. Therefore, there will be a new criminal offence for those employers found to be knowingly employing illegal migrant workers.

Home Office seeking views on certain proposals

Before implementing these new powers, the Home Office is seeking views on a number of its proposals including the following:

1. Will the new obligation to repeat checks lead to significant additional costs to employment practices?

2. Should the timings of follow-up checks be standardised? If so, when, annually etc?

3. How well understood are the requirements for employers under the current legislation?

4. How much have the Government communication methods contributed to a good understanding of the current legislation?

5. What improvements to the Government communication process would aid understanding of the new provisions and assist employers in complying with the law?

6. The current recommendation is that employers conduct document checks on all prospective employees to avoid allegations of unlawful discrimination.

Do you think this recommendation will be followed?
Do you think the recommendation is enough to provide a safeguard against unlawful discrimination?
Are there any alternatives that would provide further safeguards against unlawful discrimination?

New penalty

The current maximum fine for the employing an illegal worker is £5,000. This is currently under review and the Home Office is considering increasing it to £10,000. In addition, a sliding scale may be introduced to ensure that the penalty is proportionate to the nature of the breach.

The Home Office is also seeking views on:

7. What is the right maximum civil penalty for those employers who conduct no document checks at recruitment and have been found to repeatedly employ illegal migrant workers - £5,000 or £10,000?

8. Should employers only receive a written warning for a first offence in the generality of case unless there are more than four illegal workers or there is evidence of deliberate wrong-doing on the employer’s part?

9. How important are the following factors in calculating the amount of the penalty?

Whether full or partial document checks have been completed by the employer.
Whether any previous penalties or warnings have been issued.
Whether or not there has been any subsequent improvement in procedures following previous penalties or warnings.
Whether the employer has reported its suspicions to the Home Office.
Whether the employer has co-operated with the Home Office.

10. Should employers be allowed to pay fines in instalments? If yes, should a maximum period in which to pay the fine be set? If so what?

11. When preparing cases for prosecution for knowingly employing an illegal worker, should the Home Office routinely invite the court to consider disbarring the director alongside any other punishment thought appropriate?