Audrey Elliott, employment law partner at Eversheds law firm, provides answers to some of the questions that have been thrown up by the Immigration, Asylum and Nationality Act 2006 that came into force in February.

Q. Have the changes to the Immigration, Asylum and Nationality Act 2006 (‘the Act’) resulted in more employers being prosecuted?

Around 137 employers have been prosecuted to date – 10 times the number caught last year. The UK Border Agency has handed out fines of approximately £500,000.

Plus, prosecutions are likely to continue to rise. The government enhanced its enforcement budget by £100 million, increased publicity on cracking down on illegal working and gave the UK Border Agency the power to issue on the spot fines.

Today, the government announced 60% more immigration removal centres confirming that it had increased operations by 40%. Immigration Minister Liam Byrne said: “We are cracking down on illegal working with more enforcement raids than ever before”.

Q. What are the penalties?

The Act introduces new civil and criminal penalties. Under the Act, it is an offence for an employer to employ a person aged 16 or over who is subject to immigration control and has no permission to live and work in the UK, or who works for an employer in breach of their conditions to stay in the UK. The maximum fine is £10,000 per illegal worker.

Employers may also commit a criminal offence where they knowingly employ an illegal immigrant. The maximum penalty can be an unlimited fine and imprisonment for up to two years. Directors, secretaries and managers can be liable for this offence where the offence is committed with their consent.

These new arrangements apply to those employees who started working for the employer on or after 29 February 2008. Employees who were recruited before this date will still be liable for prosecution under the 1996 Asylum and Immigration Act.

Under the new points based system (PBS) an employer may also face being prevented from registering as a sponsor or downgraded or struck off in the future, which will limit who the employer can employ under the PBS.

<strong?Q. What can employers do to avoid prosecution under the Act?

Employers can establish an excuse against a civil penalty fine by making certain document checks. An employee must provide documents in the correct combinations from list A or list B (‘the lists’) as detailed on the Border Agency’s website.

Documents from list A will establish an excuse for the duration of an employee’s employment provided that copies of the originals are taken. Documents from list B indicate that the employee has limited leave to remain in the UK. Therefore checks must be carried out on the employee at least once a year until they can provide documents from list A or they leave employment.

Employers must always check the original documents. They must check that any photographs resemble the prospective employee; that dates of birth and names are consistent; expiry dates are still valid; stamps and endorsements allow them to do the type of work the employer is offering.

The copies of the documents must be photocopied or scanned using a program which does not allow the document to be altered, such as a PDF. Documents must be retained for two years after the employee has left employment.

Q. Which industry sectors are most at risk of prosecution?

It is likely that food, catering and hospitality, construction and care industries are more likely to be the focus for the UK Border Agency as traditionally, these areas attract migrant workers and pay the minimum wage.

Q. What are some top tips for establishing an excuse?

• Take copies of the documents in the specified combinations in the lists before the employee starts work;
• Have systems in place, such as a centralised diary system, to ensure that further checks are carried out on employees who provide documents from list B at least once a year and a month before their leave to remain expires;
• Be alert to using the UK Border Agency Employer Checking Service when required;
• Provide training for all managers and HR advisers responsible for recruitment.

Q. What can employers do to prevent discrimination claims?

• Do not make assumptions about an employee’s right to work based on racial grounds, for example, do not just ask an employee with a foreign sounding name to provide certain documents;
• Decide when in advance of the employee starting work whether they will ask to see original documents in the lists, e.g. first interview;
• Treat all applicants the same way at each stage of the recruitment process.

Q. Can an employer defend the penalties?

Employers have 28 days to object to a civil penalty. The grounds of appeal are that the employer is not liable to the penalty, the employer has established a statutory defence, or the amount of the penalty is too high.

Eversheds LLP can assist all employers in terms of understanding the requirements of the Act, putting appropriate policies in place or helping defend both civil and criminal prosecutions. Any queries should be directed to Audrey Elliott on 0845 497 1523.