Immigration - The New Rules

Article by Anne-Marie Boyle

The Immigration, Asylum and Nationality Act 2006 (the "Act") essentially creates two new offences in relation to employees engaged on or after 29 February 2008 as follows:

negligently employing an illegal migrant - a civil offence, which may result in the civil penalty (the "Civil Offence"); and

deliberately employing an illegal migrant - a criminal offence, punishable with an unlimited fine and/or imprisonment (the "Criminal Offence").

Summary guidance (the "Guidance") on these new provisions has been issued by the Border & Immigration Agency ("BIA").

The Civil Offence

What Is The Civil Offence?

An employer will commit a Civil Offence where it employs an individual aged 16 or over, who is subject to immigration control (as determined under the Immigration Act 1971) and who does not have the right to legally work in the UK.

What Are The Consequences For An Employer If It Commits A Civil Offence?

An employer may be liable to a civil penalty of up to £10,000 in respect of every employee employed illegally.† The penalty is calculated on a sliding scale with the award being determined on an individual basis in accordance with the circumstances of the case.† Consequently, an employer who seeks to comply with the new rules (but fails) may initially receive a warning, whilst an employer who repeatedly offends may be liable for the maximum fine.

The new Code of Practice, "Civil Penalties for Employers", sets out factors that will be considered in determining the level of the penalty to be awarded.† These include an employer's previous record of offences, the checks which have been undertaken (albeit that the employer has not strictly complied with the legislation) and its cooperation with the BIA.† Whilst the Code is not legally binding courts must consider it where it is relevant.

How And When Is An Employer Informed Of Any Penalty Award?

On the spot penalty notices may be issued by BIA officials (usually Immigration Officers).† A notice will contain the reason for the penalty, the amount and how it is to be paid, the date by which it must be paid (at least 28 days from the date it was issued) and how an employer can object to it where it considers that it is not liable, it has a "statutory excuse" (essentially a defence) or it wishes to resist the size of the award.† If an employer fails to pay the penalty notice, it can be recovered by the Secretary of State as a debt.

How Can An Employer Establish A...