Background

Under section 8 Asylum and Immigration Act 1996, it is a criminal offence for an employer to employ someone who does not have valid permission to live and work in the UK. It is a defence for employers to show that, before taking on a prospective employee, they have checked, copied or retained certain specified documents (such as a passport). Although employers guilty of such an offence can be fined up to £5,000 per illegal worker, the prosecution rate under the current system is very low. In order to tackle illegal immigration more effectively, the Government has introduced a new system under the Immigration, Asylum and Nationality Act 2006, which combines civil and criminal sanctions and which will come into force on 29 February 2008.

New legislation

The Immigration, Asylum and Nationality Act 2006 introduces three key measures:

  • a civil penalty for employers who negligently employ an adult subject to immigration control in breach of their conditions of leave or stay in the UK, the maximum fine being £10,000 per illegal worker (section 15(1) and (2));
  • a continuing obligation for employers of workers who have limited leave to enter or remain in the UK to check their ongoing entitlement to work in the UK (section 15(7)(e)); and
  • a new criminal offence for employers who knowingly employ illegal workers, which will carry a maximum prison sentence of two years and/or an unlimited fine (section 21(1) and (2)).

Effect on employers

The new legislation does not significantly change employers’ obligations with regard to the prevention of illegal working. As is the case under the 1996 Act, employers will be excused from payment of a fine under section 15(3) and (7) Immigration, Asylum and Nationality Act 2006 provided they: (i) have verified, retained, copied or recorded specified documents of the employee prior to employment; and (ii) can show that they were not aware at any time during the period of employment that they were employing an illegal worker. The main difference is that in order to have a defence to civil liability, employers will need to undertake ongoing checks at least annually for those employees with limited leave to enter or remain in the UK. In addition, there will be no defence to criminal liability.

Although the new measures are not groundbreaking, they will enable the Government to impose tougher penalties and deal with non-compliance of UK immigration law more effectively. Employers should ensure that in making the required checks, they avoid unlawful race discrimination, for example by only checking the documents of a particular group. The new Immigration, Asylum and Nationality Act 2006 will permit the Secretary of State to issue a new Code of Practice on how to avoid race discrimination when making the required checks.