-
Policing the corporate border - the job of HR?
Helen Brooks, Employment Solicitor and Rachael Mason, Immigration Associate, discuss whether the new measures employers must take to establish if a worker has a legal right to work in the UK are asking too much of them.
The Immigration, Asylum and Nationality Act 2006 ("the 2006 Act") was passed on 30 March 2006 further to the Government's five year strategy for asylum and immigration, set out in the Command Paper "Controlling our Borders - Making Migration Work for Britain". The 2006 Act has strengthened the law on the prevention of illegal migrant working by replacing the controls and sanctions previously set out in section 8 of the Asylum & Immigration Act 1996 ("the 1996 Act").
What must employers now know?
Employers have a responsibility to prevent illegal working in the United Kingdom. Under the 2006 Act, new measures and penalties to help tackle illegal migrant working came into force on 5 November 2007 and rules on how the penalties are calculated, which apply to both companies and individuals, will come into force on 29 February 2008. The key provisions are:
(i) a civil financial penalty for employing illegal migrant workers (section 15);
(ii) a statutory defence, whereby employers can be "excused" from the civil penalty; and,
(iii) a separate criminal offence of knowingly employing an illegal migrant worker (section 21).Civil penalty
Certain factors will be taken into account when deciding the level of the financial penalty under section 15, which may be up to £10,000 per illegal worker. These factors include:
- The number of checks the employer conducted;
- Whether the employer reported suspected illegal workers to the Border and Immigration Agency;
- Whether the employer co-operated with the Border and Immigration Agency;
- The number of offences that the employer has committed in the past.
Statutory Defence
If reasonable steps are taken to check the validity of immigration "status documents" the statutory defence will be established for the duration of the employment and no further checks will be required unless the status document itself contains restraints, for example on duration of stay in the UK or relationship status. A code of practice to assist employers and provide greater guidance on the penalties, entitled "Civil Penalties for Employers", will come in to force on 29 February 2008. In these situations, in order to maintain the defence the employer is obliged to carry out follow-up checks no later than 12 months after the initial check and every 12 months thereafter.
The statutory defence is best established if the employer:
- Takes reasonable steps to check the validity of the documents;
- Keeps copies of the documents for at least two years after the employment terminates;
-
Satisfies itself that any photographs in the documents are of the prospective employee and are
-
Takes all reasonable steps to check that the prospective employee is the rightful owner of the
- Retains copies of the documents in a form that cannot be subsequently altered;
The amount of financial penalty is reduced on a sliding scale dependent on compliance with these steps.
An employer with multiple premises, where recruitment is specific to each site, will not be liable to a cumulative penalty if illegal workers are detected at different sites unless this can be attributed to a general failure in the employer's centrally set recruitment practices.
Criminal offence
A criminal offence is committed where it can be proved beyond reasonable doubt that an employer employed an individual knowing that they did not have current leave to enter or remain in the UK or that their conditions of stay prevented them from undertaking the employment offered. An employer found guilty may be liable to a custodial sentence of up to two years and / or an unlimited fine.
Race discrimination
Under section 4 of the Race Relations Act 1976 it is unlawful to discriminate in recruitment or employment on racial grounds. Employers, therefore, must not assume that someone from an ethnic minority is an immigrant or that someone born abroad is not entitled to work in the UK. However, the Court of Appeal held, in the case of Dhatt v. McDonalds Hamburgers Limited [1991], that the respondent employers had not discriminated against the claimant, an Indian national, on grounds of nationality by requiring him to produce evidence of his right to work in the UK, when they did not make a similar request to British and EEC citizens. The proper comparison was between the claimant and others who, although not Indian nationals, were not British citizens or from the EEC. The relevant circumstances were then the same in that they were all treated alike by the respondents' recruitment practices. Further, Parliament itself recognises and seeks to enforce by reference to nationality a general division between those who by reason of their nationality are free to work and those who require permission. The employers had the responsibility to ensure that applicants were lawfully entitled to accept employment. Although nationality is itself discriminatory in racial terms, it is discrimination which has been sanctioned by statute. Lord Justice Neill in this case commented, however, that it is important that employers should ensure that their managers have sufficient knowledge of the system of immigration control and the stamps which are used to avoid causing unnecessary offence.
To assist employers a code of practice, entitled "Guidance for Employers on the Avoidance of Unlawful Discrimination in Employment Practice While Seeking to Prevent Illegal Working" will come into force on 29 February 2008.
Are the new measures asking too much of the employer?
Until 1996, there was no legislation directly dealing with employers' sanctions for employing illegal workers. There were, however, indirect offences of harbouring illegal workers or giving false statements. Many HR officers will be familiar with section 8 of the 1996 Act which created a criminal offence of employing a person who had no permission to work in the UK, and a statutory defence of having performed the prescribed checks. There was a maximum penalty of £5,000 for every employee found to be working illegally and no defence available if the employer knowingly employed illegal workers.
The new rules under the 2006 Act require employers to carry out more frequent checks on employees and their ability to work in the UK, and employers should be aware that they may be subject to on the spot fines as the Secretary of State may give a penalty notice without having first established whether the statutory defence applies. Many commentators therefore have questioned whether these new rules impose an unfair burden on employers who, it would appear, are being asked to actively monitor and police the UK's immigration situation?
Whilst the new measures include provision for reducing, or even eliminating, the financial penalty, employers are required to check the immigration documents at the start of the employment relationship and then, for employees with restrictions on their status, at least every 12 months. This will require stringent diarising of dates and, therefore, for employers who traditionally employ a large number of migrant workers, the administrative burden on them will be dramatically increased. This could lead to a decision being taken to not employ migrant workers.
Further, some right to work in the UK is dependent upon the relationship status of the employee, for example, being in the UK as the spouse or dependant of a UK national / work-permit holder. The right to work depends upon the personal relationship continuing. Employers may need to ask questions of a personal nature to establish if an employee continues to have a right to work in the UK. This would seem contrary to an individuals' ‘right to private life' as prescribed by the Human Rights Act 1998.
It is also difficult for employers to know exactly what documents need to be checked and copied for personnel files. There are, literally, dozens of different ways for foreign nationals to come to the UK legally. There is further confusion as not every entitlement to be in the UK includes the right to work in the UK. Employers will need to be sure that they are familiar with which endorsements confirm legal immigration status.
Employers are also rightly concerned about the correlation to race discrimination legislation. Employers are best advised to ensure that the same checks are made on all potential employees at the same time in the recruitment process, not just those that they suspect to be migrant workers. This requirement should be expressly stated, for example, in the employer handbook, contract of employment and potentially even the initial application form.
Helen and the employment team regularly advise on all aspects of employment law. Rachael and the immigration team are experts in the field of immigration law. For more information, please contact magrath@magrath.co.uk
This article was first published by Consult Gee HR during January 2008
