New Penalties for Employing Illegal Workers
If you are an employer it is vital that you are aware of changes in the rules for employing foreign workers (other than from the EU) who have immigrated into the UK. The requirements changed with effect from 29 February 2008. New criminal and civil penalties have been brought in by the Asylum and Nationality Asct 2006 (the “Act”). The background is that the changes are part of the Government’s new approach to tackling illegal immigration using a points based system (“PBS”).
Section 15 of the Act introduces a new system of civil penalties so that the maximum civil penalty for each illegal worker hired will be £10,000. Fines will be applied on a sliding scale depending upon the type and quantity of checks carried out by the employer before taking on the immigrant employee.
The Act enables an employer to establish a defence by checking and copying various documents that the employee has to produce.
Guidance is given by a code of practice which lists the types of documentation to be checked.
The penalties will be operated by the Border and Immigration Agency (“BIA”) and there is a right of appeal to the Courts if an employer believes that a penalty imposed is unfair.
The difference between the existing legislation and the new Act is that not only does the eligibility of the foreign worker have to be checked before employment but there is now an ongoing responsibility to check an ongoing entitlement to work in the UK. There must be a system of checks at 12 month intervals at least.
The UK Borders Act 2007 (the “2007 Act”) will bring in biometric identity cards for foreign nationals who are living in the UK for 6 months or more. In time, once the ID cards are in place, it is envisaged that the requirements to check other documentation will be phased out.
The bottom line is that a defaulting employer may be imprisoned for up to 2 years and given an unlimited fine.
Under the points system there is also a system of sponsorship of migrant workers by employers. It is necessary to be licensed for this purpose.
In the same way that solicitors and other professionals are now being used by the Government as reporting agents in cases where money laundering is suspected now employers who are sponsors will be saddled with reporting duties, for example if an employee is absent from work for more than 10 working days without permission.
Although the BIA argues that the changes will not significantly alter employers responsibilities in this field there is concern that in fact the burden upon employers of foreign migrant workers will increase. The sop here is that the Government has agreed to review the effect of the changes in 12 months time.
Readers may be aware of the caution “buyers beware”. This new legislation emphasises the need for employers to beware.
For advice and assistance on Employment Law please contact Nigel Pepper, (Consultant) or Patrick Nelson (Associate) at Stafford on 01785 211411
07 March 2008
The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. The law may have changed since this article was published. Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances. (50587)