New Penalties For Employing Illegal Workers

Background

The Government recently published new measures to prevent illegal working in the UK, which came into force on 29 February 2008 under The Immigration Asylum & Nationality Act 2006. The most important changes are the creation of new civil financial penalties for employers who negligently hire illegal workers and unlimited fines and/or custodial sentences of up to two years for employers who are found to have knowingly hired illegal workers.

Unlimited fines and custodial sentences

The Asylum and Immigration Act 1996 ("the 1996 Act") made it an offence to employ a worker over 16 years of age who has no right to work in the UK.† Penalties of up to £5,000 per illegal employee could be imposed and liability extends to a director, manager or officer of a company.† However, these measures proved of limited success and the Government has introduced unlimited fines and/or custodial sentences as a more effective deterrent.

The new civil penalty system

Under the new legislation employers will also commit an offence if they are found to be employing a person aged 16 or over who requires leave to enter or remain in the UK,†unless that person has current or valid permission to be in the UK and to do that type of work.† Employers who negligently hire illegal workers in this way could face maximum fines of £10,000 for each illegal worker found to be working for them.

Avoiding liability

Under the 1996 Act, employers are provided with a statutory defence from conviction if they check and record certain specified documents before employment commences.† From 29 February 2008 employers can avail themselves of a "statutory excuse" from payment of a civil penalty in a similar manner.† A full list of the specified documents (which is divided into Lists†'A' and 'B') in section 8 of the 1996 Act, but includes:

A full UK or European Economic Area (EEA) passport ('list A');†or

A full British birth certificate and document from a previous employer or Jobcentre Plus (e.g. P45/P60) confirming the person's National Insurance number ('list A');†or

A work permit and passport endorsed to show leave to enter or remain in the UK and permission to take the employment in question ('list B').

Employers must make and retain a photocopy or scan of each original document provided, note the date when the document check was carried out and keep a copy on file for the duration of the employment (and for 3 years thereafter).† Visual checks should also be carried out to ensure...