The Bribery Act 2010 is due to come into force in April 2011. Companies with a presence or an 'operation' in the UK, which rely on a network of employees, agents and officials across the world to provide assistance with their global immigration solutions, should pay particular attention to the new risks posed by this legislation.
Under the Act, the failure by a commercial organisation to prevent its employees, agents or subsidiaries from engaging in bribery can lead to an unlimited fine and, in some circumstances, personal criminal liability for directors and employees who on conviction may be imprisoned for a period of up to ten years.
Where a bribery offence is committed, an organisation may avoid corporate liability only where it can prove that it had 'adequate procedures' in place to prevent bribery. On 14 September 2010, the Ministry of Justice published a consultation paper setting out draft guidance based on the six general principles below, to help organisations implement 'adequate procedures' to prevent bribery:
1. Risk assessment
The draft guidance recommends that organisations should consider undertaking a risk assessment as the Act gives a broad definition to 'key bribery risks' which may include:
- deficiencies in employee knowledge, training or skills;
- lack of clarity in the organisation's policy on gifts, entertaining and travel expenses;
- failure to identify countries that have higher perceived levels of corruption;
- involvement in transactions relating to charitable or political contributions, licences and permits, public procurement, high value projects with many contractors or involvement of intermediaries or agents;
- working with business partners located in higher risk jurisdictions, or where they have associations with prominent public office holders.
In the immigration context, risk situations could arise without the knowledge of those in the UK organisation in a range of situations which may include, for instance:
- agents (including education agents) or staff members in partner organisations bribing a government visa officer to influence the outcome of a visa application; or
- an individual visa applicant bribing an organisation to obtain a document(s) to support a visa application (for instance, bank statements, references, qualifications certificates); or
- representatives of a corporate entity seeking to do business in a new territory bribing officials to make government policy changes to enable it to transfer key employees to a particular country; or
- excessive and unnecessary hospitality towards those who make immigration policy and decisions. Whilst lobbying activities would not pose a problem in themselves, companies should be particularly wary where agents or advisors promise that they have 'special relationships' with government officials.
2. Top level management commitment to tackling bribery
3. Due diligence
4. Clear, practical and accessible policies and procedures
5. Effective implementation
6. Monitoring and review
Businesses should carefully check their existing policies and procedures and their relationships with agents, advisors and other partners who they involve in their immigration related business decisions and make changes, including the provision of training as necessary to ensure that their global immigration needs do not expose them to the risks inherent in this legislation. They also need to have procedures in place to monitor and review the policies on a regular basis.
The commercial and immigration teams at Penningtons Solicitors LLP have been working with clients to ensure they are prepared and have the following measures in place:
- anti-bribery and whistle blowing procedures;
- a public statement on bribery;
- anti-bribery clauses in employment/agency/commercial contracts;
- a corporate gifts and hospitality policy;
- anti-bribery and corruption training.