David Cameron has announced his plans to introduce a major Immigration Bill which will provide for a new criminal offence of illegal working as part of a raft of anti-immigration measures. The primary purpose of the new offence is to prosecute illegal workers so that their wages may be seized as the proceeds of crime under the confiscation regime. The offence will apply to migrants who have entered the country illegally as well as those who came to the country legally, but have overstayed.

Despite the Prime Minister's anti-immigration rhetoric, if implemented, this new offence may have little impact. Wages can amount to a relevant “benefit” for the purposes of the confiscation regime (R v Carter and Others [2006] EWCA Crim 416) but most illegal workers will be able to satisfy the court that their realisable amount for confiscation purposes is far less than their benefit (i.e. the total sum of the wages they received). In such cases, the court will be obliged to make an order for the lesser sum. This means that the amounts to be confiscated will be low and enforcement may be disproportionately difficult with the upshot being that the costs of pursuing confiscation will far outweigh the sums recovered. In the DPP’s “Guidance for Prosecutors on the Discretion to Instigate Confiscation Proceedings”, prosecutors are advised that where a defendant has no assets with which to pay any confiscation order, they should consider whether it would be in the public interest to seek a confiscation order.

Even if prosecutors do instigate confiscation proceedings, domestic and European courts may resist, on human rights grounds, efforts to confiscate the available assets of these low income workers. In R v Waya [2012] UKSC 51, the Supreme Court ruled that the Human Rights Act 1998 (“HRA”) requires criminal courts to refuse to make disproportionate confiscation orders (although The Government's planned abolition of the HRA may well impact on this).

Last year, in Paulet v The United Kingdom, the European Court of Human Rights (ECtHR) found that the confiscation of an illegal migrant’s wages constituted a violation of his right to peaceful enjoyment of his possessions under Article 1 of Protocol No. 1 (“A1P1”) to the European Convention on Human Rights. In that case, Mr Paulet, an Ivorian national, had successfully applied for three jobs in the UK using a false passport. His employers did not know that he was working illegally and he was prosecuted for obtaining a pecuniary advantage by deception. His benefit was assessed at £50,000 (that being the wages he earned over a four year period) and a confiscation order of just under £22,000 was made (representing what remained of his benefit). Mr Paulet challenged the order on the grounds that it was oppressive for the Crown to seek, and the court to impose, a confiscation order for what amounted to his entire savings. The UK court found that it was in the public interest to impose the confiscation order but the ECtHR found that this interpretation was too narrow and did not take his A1P1 rights into account.

It therefore remains to be seen whether Mr Cameron’s plans to confiscate the wages of low income illegal workers will be enforced in the UK courts. Prosecutors may decide it is not in the public interest to pursue confiscation and, where they do, the courts may find that it would be contrary to a defendant’s human rights to make a confiscation order. Those working illegally in the UK are already at risk from deportation – it appears unlikely that the additional risk of confiscation of these earnings will materially impact on the numbers of illegal workers.