Employer sanctions: new developments in the UK and in Europe
UK employers may be feeling slightly beleagured. This week the UK Border and Immigration Agency in the UK Home Office has published a consultation on illegal working and the sanctions to be imposed on employers. This week the European Commission unveils proposals for minimum penalties for employers who employ people who do not have permission to work in member States.
The UK – 7 August deadline
Employers who employ people who do not have permission to work in the UK can be prosecuted. The offence is one of strict liability, but there is a statutory defence of having performed checks on employees’ documents to establish that they have permission to work in the UK.
The Immigration, Asylum and Nationality Act 2006 creates a new legal framework for employer sanctions. It is not yet in force. The consultation document, Prevention of Illegal Working: Immigration, Asylum and Nationality Act 2006 Consultation on the implementation of new powers to prevent illegal migrant working in the UK, is an invitation to employers and others to comment on how the system will work in practice. The deadline for responses is 7 August 2007.
Under the new regime there will be a more limited criminal offence, that of ‘knowingly’ employing a person who does not have permission to work in the UK. In addition there will be a system of civil penalties, ‘on the spot fines,’ on a strict liability basis. As with the existing criminal offence there will be a defence of showing that you carried out the requisite checks on the employees documents. The new legislation envisages employers carrying out repeat checks: checking documents not only at the time of recruitment but at regular intervals thereafter. The consultation is asking for employers’ views on the frequency of the checks.
The consultation document adds little to the Regulatory Impact Assessment (RIA) and other documentation prepared when the Immigration Asylum and Nationality Act 2006 was being considered by parliament. It states that employers will need to have a Certificate of Sponsorship (CoS) before they can sponsor employees from abroad (normally by applying for a work permit for those employees). It states that sponsors will be rated A or B according to ‘good practice criteria’. At the time when the legislation was being considered by parliament there was discussion of the need to rate employers at ‘A’ and then demote them if they failed to comply with their obligations rather than try to grade them ‘A’ or ‘B’ at the outset, because there was simply not the management information to do this in a fair manner. The document does not mention this. It does reiterate the threat made at that time that not only could employers be downgraded for failing to comply with their obligations, being issued with a civil penalty or being convicted of the offence of knowingly employing a migrant worker, but they could also lose altogether their entitlement to bring in workers from outside the European Economic Area (EEA). The document says:
“…if evidence arising from the issue of a civil penalty notice brings to light information which warrants down-grading or removal from the sponsorship register, we will not hesitate to do so.’
The consultation paper says that employers will not face new duties in respect of individuals they currently employ.
While the new legislation places employers under obligations to check employees documents so that they do not employ someone who does not have permission to work in the UK, it also places them under obligations not to discriminate in recruitment practice. It is not acceptable to try to avoid the obligations under the new legislation by only employing people who are not subject to immigration control. A draft Code of Practice to prevent unlawful discrimination in recruitment practices is appended to the consultation paper and comments are invited upon it.
The consultation paper can be downloaded from the Border and Immigration Agency website at
http://www.ind.homeoffice.gov.uk/6353/6356/17715/preventionofillegalworkingc1.pdf
It is a good idea for employers and those responsible for human resources and personnel to read the document to get an idea of what is coming. Many may also wish to make their views known to the Border and Immigration Agency, and try to influence the regime to which they shall be subject.
European Union
Employers could also be subject to sanctions under European regimes. This week the European Commission announces proposals for new minimum penalties against employers who people who do not have permission to work in member States. Administrative sanctions, of which the UK civil penalty is an example, fines and prison sentences are among the proposed minimum penalties.
Alison Harvey, Gherson and Co.
