In the four months since the Immigration, Asylum and Nationality Act 2006 came into force, almost 300 fines have been imposed on UK organisations. Laura Mitchell outlines what employers need to do to ensure they don’t fall foul of the law.

It may have only been four months since the government introduced stricter penalties on employing illegal workers, but already more than 265 fines have been imposed on UK companies, totalling £2.35m. Determined to crack down on unscrupulous employers, the Home Office have named and shamed some 35 firms on their website who have received prosecutions under the immigration legislation.

Criminal offence

Since 29 February 2008, it has been a criminal offence to knowingly employ a worker, over the age of 16 years, who has not been granted leave to enter or remain in the UK, or their leave to remain is invalid, ceased to have effect, or subject to a condition preventing the employee from accepting employment. Employers found guilty of the offence could receive an unlimited fine and/or up to two years’ imprisonment.

There is evidence that some migrants who are working illegally are paid less than the minimum wage, do not pay tax and may be doing dangerous work that breaks health and safety legislation.

Employers who knowingly employ illegal migrant workers often do so because they want to avoid providing minimum standards, such as national minimum wage and paid holidays. This is not only harmful to the workers involved but it also enables unscrupulous employers to gain an unfair advantage over its legitimate competitors. The strict criminal offence and the government’s more pro-active approach to enforcement, shows that tough action will be taken against those employers who seek to profit from exploiting illegal labour.

Negligence is no excuse

Together with the criminal penalty, a new system of civil penalties was introduced for those employers who negligently (albeit unknowingly) hire illegal workers. This carries a maximum fine of up to £10,000 per employee. Tackling illegal working and taking strong action against employers who use illegal labour has never been higher on the government’s agenda. It is essential that employers recognise that they must take some responsibility for checking whether their workers have the right to work in the UK, if they are to avoid these penalties.

Statutory excuse

Employers will have a defence to the civil penalty if, before the start of employment, it had checked and copied certain documents which confirm a prospective employee’s right to work. Employers must be provided with a document or combination of documents from one of two lists set out in the guidance.

Documents from ‘List A’ show that the holder is not subject to immigration control, or has no restrictions on their stay in the UK, e.g. a UK passport. Once a prospective employee produces a ‘List A’ document (or one of the combinations specified) they can work for the employer for an indefinite period and, providing the employer carries out the proper steps, they will have a defence if that person is subsequently found to be an illegal worker.

Documents from ‘List B’ demonstrate that the person has been granted leave to enter or remain in the UK for a limited period of time, e.g. work permit together with passport endorsed to say can stay in the UK and do the work in question. Where an individual produces a ‘List B’ document, the employer should carry out follow up checks of the same kind at least once every 12 months in order to have the benefit of the statutory excuse.

Genuine or forgeries?

There has been some criticism that it is unfair to expect an employer to be able to determine whether an ID document is genuine or a clever forgery. If the ID document provided under List A or B is subsequently found to be a forgery, the employer may not be liable for the civil penalty, unless the falsity was ‘reasonably apparent’.

This has been defined as “an individual who is untrained in the identification of false documents, examining it carefully, but briefly without the use of technological aids, could reasonably be expected to realise that the document in question is not genuine”.

When presented with one of the relevant documents, employers should:

• Check any photographs are consistent with the appearance of the employee




• Check any dates of birth are consistent across documents and that they are satisfied these correspond with the appearance of the employee




• Check expiry dates of any limited leave to remain in the UK have not passed




• Check any UK Government endorsements to see if the individual is able to do the type of work they are offering




• Satisfy themselves that the documents are valid and genuine, have not been tampered with and belong to the holder.

The future?

The government is soon to begin introducing ID cards for foreign nationals on a compulsory basis, which over time, will replace the old-fashioned paper documents currently issued to foreign nationals.

The cards will have a chip which holds a digitised photograph and fingerprints of the individual, alongside biographical information (e.g. name and date of birth). The card will also show details of the holder’s immigration status and entitlements in the UK.

By the end of 2014/2015, the government estimates that 90% of foreign nationals will be issued with an ID card, significantly reducing the burden on employers to identify false documents.

In the two months after the new penalties came into force, 137 businesses were issued with notices of potential liability, which was 10 times greater than the entire number of prosecutions for the whole of last year.

There are a number of uncertainties about the amount of people living and working in the UK illegally. While some Trade Union leaders have criticised the government’s strategy for being too little, too late, the strict approach to illegal working is certainly a step in the right direction.

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Laura Mitchell is an associate at Clarion Solicitors LLP.