Baroness Scotland and the Prevention of Illegal Working Legislation

Over the past few weeks we have all read and heard about Baroness Scotland’s misfortune in falling foul of legislation which she helped to have enacted. We have been told that she employed an illegal worker and that she was fined because she should have kept copies of documents relating to the employment of her household help. But what exactly is the legislation she fell foul of, what are employers required to do and what are the possible penalties for failing to comply with the legislation?

The legislation in question is the Immigration, Asylum and Nationality Act 2006 (the 2006 Act). Sections 15-25 of this Act came into force on 29 February 2008. This superseded Section 8 of the Asylum and Immigration Act 1996 (the 1996 Act) which was in force form 27 January 1997 but was repealed when Sections 15-25 of the 2006 Act came into force. Prior to 27 January 1997, there was no specific legislation in relation to the responsibilities of employers to ensure that their employees had a right to work lawfully in the UK. Under Section 8 of the 1996 Act, from 27 January 1997 to 30 April 2004 an employer was required to keep copies of relevant documents showing that an employee was lawfully in the UK and had permission to work. However, the legislation was not robust and it was sufficient for an employer to keep a copy of a document containing the employee’s name and National Insurance number in order to provide a statutory defence against any potential prosecution for employing an illegal worker.

Section 8 of the 1996 Act was tightened quite stringently following the introduction of the Immigration (Restrictions on Employment) Order 2004 (the Order). This amended Section 8 of the 1996 Act and from 1 May 2004 an employer was required to keep copies of specific documents showing that an employee was lawfully in the UK and had permission to work before the employee started working for the employer. The Order listed specific documents or combinations of documents, copies of which must be retained by the employer showing that the employee had the right to live and work in the UK. Examples of documents might be a British passport describing the holder as a British Citizen; or a UK birth certificate showing the holder to be born in the UK plus an official document showing the person’s national insurance number; or a passport of a non European Economic Area (EEA) national containing a stamp showing no restriction on the holder taking employment in the UK.

The changes to the legislation introduced on 29 February 2008 placed even more responsibilities on the employer. In addition to all the requirements of the 1996 Act, the employer is now required not only to check and keep copies of documents showing the right to work in the UK of all employees before they start working but in the case of non EEA nationals the employer is required additionally to conduct an annual check of their documents and keep updated copies of the front cover, personal details page, signature page and all pages containing UK endorsements. The person seeing and copying the documents is also required to confirm that the person bears a reasonable likeness and is of a corresponding age to the holder of the passport or identity card.

Section 15 of the 2006 Act also introduced the concept of imposing a Civil Penalty if an employer employs an illegal worker and has not established a “statutory excuse” by checking and/or copying the relevant documents before the employee starts working. The fine is calculated on a sliding scale and can be up to £10,000 per illegal worker depending on how little checking the employer has done, whether it was the first time an illegal worker was found working for the employer and other factors. In the case of forged or counterfeit documents presented by the employee, the UK Border Agency applies the term “reasonably apparent”. So if it considers that a forgery should have been reasonably apparent to the employer or the employer should have noticed that the employee does not bear a reasonable likeness to the document produced, the employer can be given a Civil Penalty. If a forged document is of good quality and not reasonably apparent to the employer, it is unlikely that any action will be taken against the employer.

There is a more serious offence which can be committed under Section 21 of the 2006 Act – that of knowingly employing an illegal worker. This is a criminal offence and the employer may be prosecuted and face a sentence of up to two years imprisonment and/or a fine for this offence.

None of the above changes to the legislation on illegal working are retrospective, so the requirements placed on the employer to check and keep copies of documents will be those which were in force when the employee started working for the employer. Also, no employer will face a Civil Penalty or prosecution if no copies of documents are retained but the employee is not an illegal worker. However, why take the risk?

So, now we see the complexities of the minefield of legislation that employers face in relation to employing illegal workers. We can also see the quandary in which Baroness Scotland found herself in relation to her Tongan housekeeper. It is reported that she said that she failed to keep copies of the relevant documents. This is why she was given a Civil Penalty of £5,000, which is the level of penalty for a first offence. However, if it had been established that she had known that her housekeeper did not have permission to live and work in the UK, which could well have been the case had she seen her passport, she could have been facing prosecution for knowingly employing an illegal worker. Employer beware…

October 2009