Onus on employers to discourage illegal immigration

Employers will be moved to the front line of immigration law enforcement in an effort to stem the tide of illegal immigration to the UK. The Home Office will require that employers check the legal status of their current and potential staff or face stiff penalties involving on the spot fines of up to £10,000 plus unlimited fines and gaol terms for knowingly employing workers illegally.

According to Jacqui Smith, the Home Secretary the objective is to make “the UK a less attractive destination for illegal migration. (1)”  Both Ms Smith and the Human Rights Director of National Car Park Services, Chris Gillespie, profess working with employers to reach this goal (2).  However, the methods being employed to encourage cooperation with employers appear to be of the stick, rather than the carrot, variety. The primary motivation given to employers is significantly greater sanctions and increased liability. In addition to this, the Home Office estimates that it will cost businesses £27 million to ensure they are up to speed with the new legislation (3).

The Home Office is in the midst of the biggest shake up of immigration laws seen for over forty years (4).  These latest changes will come into force February next year. The changes will authorise on the spot fines for unknowingly but negligently employing undocumented workers for up to £10,000, up from £5,000. For the first time the laws will make a distinction between employers that have acted negligently and those that have acted knowingly (5).  The latter may be charged with a criminal offence and gaoled for two years and/or subject to an unlimited fine. In the United States, under similar legislation, Wal-Mart was fined US$11 million for employing illegal workers to clean their facilities (6).

As opposed to discouraging illegal immigrants, the UK is racing to attract young skilled migrants. The marked shift towards an Australian-style immigration system that includes points-based visas, is designed to attract only those immigrants that can provide the best advantage for Britain and for British employers (7).  Countries such as the UK, Canada, Australia, India, New Zealand and Iceland are developing new tactics to attract international skilled migrants (8).  Research published in June indicates that the overall impact of immigration in the UK is “limited but positive” (9).  Migrant workers contribute more in taxes than they receive in services and migration appears to lead to slightly higher levels of employment and wages for native workers (10).  

However official statistics seldom include undocumented migrants. Mr Gillespie states: “illegal working exploits vulnerable people, undermines fair business competition and the minimum wage and deprives the economy of tax and National Insurance contributions”  (11).   Mr Gillespie points out that the problem is, however, too big for the Government to tackle without assistance from employers (12).  The new measures make it much harder for employers to make excuses for not employing only those who can legally work for them. However the Trade Union Congress’ (TUC) response to the Home Office’s consultation earlier this year, pleaded that the new measures will lead to further exploitation of workers and drive the illegal work industry further underground (13).

Some employers may merely pay lip service to documentation and disregard obviously forged documents whilst others may be fooled by skilled forgeries. For these employers a revised list of acceptable documentation will be available as the Home Office phases out 20th century materials that are more readily forged, in favour of compulsory biometric ID cards.

It is the employers that deliberately avoid noticing undocumented employees, or make a policy of recruiting such on account of their vulnerability and thereby malleability, that the TUC are most concerned about. Citing the situation in the US when similar laws were called for in 1986, the TUC claims the “market for undocumented workers can only be dealt with by taking steps to minimise the vulnerability of these workers”  (14).  In light of which they firmly advocate that the UK should follow the lead of countries like Belgium, France, Germany, Greece, Italy and the Netherlands where employment rights such as minimum wage, the right to be paid, to be free from harassment and so on, are legally regarded as separate from those rights to actually reside and work in a country.

Regardless of the debate surrounding this legislation it is going to come into force next February. In the past, it appears employers have not often been heavily sanctioned. To compare, in 2006 22,000 illegal workers were deported from the UK however only 23 employers were prosecuted in 2005. Part of the new action plan however, includes enlisting an additional 1,200 officers to chase employers and enforce the legislation.

These higher fines for employers have the potential to establish readily available sanctions where a criminal prosecution is less accessible. The effect will also be to “put the employers into the frontline of the immigration services” - a very delicate position. Employers must avoid fines and prosecution under the new immigration legislation by performing various and differing checks on potential and continuing employees according to the date they were hired. At the same time they must not act in a discriminatory manner, for example, against particular immigrant groups or against employees that actively participate in trade unions and so on.

Practically this means that employers must check all employees’ ability to work for them in the UK and maintain at least annual checks on those employees with limited leave to employment whether that involves length of stay or hours worked. The checks must also comply with regulations regarding what documents will be acceptable as evidence of the employee’s status.

A firm’s previous record with regard to any labour exploitation charges will affect their ability to sponsor any further migrants so for companies that are taking advantage of the unique skilled migrant workforce it is of the utmost importance to avoid falling out of favour with the Home Office under the new more strict legislation.

The Government also intends to develop a new licensing approach for employers or colleges that wish to sponsor migrants for visas (15).  Not only will they need to obtain one of these licenses to be able to apply as sponsors, if they are successful, the employer will have additional duties such as to ensure that the employee does not overstay their visa and that they comply with the conditions of their stay.

In total the new Action Plan involves seven key parts:

1.    Harder checks abroad including biometric visas;
2.    Compulsory biometric identity cards for foreign nationals;
3.    An employee checking service – a joint pilot between the Border and Immigration Agency and the Identity and Passports Services;
4.    Sponsorship – part of the new Australian-style points based system making employers take responsibility for their workers’ compliance with the immigration rules;
5.    Penalties - the implementation of fines for negligent employment of illegal workers and a new criminal offence for knowingly doing so;
6.    Stricter enforcement; and,
7.    Awareness raising – a national media and direct mail campaign regarding illegal employment to inform employers of their responsibilities (16).

Although the Home Office has not yet released any guidance notes, employers will need to be certain of their responsibilities before February when the laws come into play. Keeping in mind the £27 million training estimate and £10,000 on the spot fines, it’s time for businesses to start getting proactive.

Gherson Solicitors are experts in immigration law and experienced in dealing with such issues.

(1) Home Office press release, 23 November 2007.
(2) Ibid1.
(3) PersonnelToday.com “Dealing with illegal workers: how much responsibility should fall on employers?”, 3 September 2007.
(4) Ibid1.
(5) PersonnelToday.com “Employers to face two years in jail for knowingly hiring illegal immigrants”, 16 May 2007.
(6) BBCnews.com “Wal-Mart to pay immigrants fine”, 18 March 2005.
(7) Border and Immigration Home “Employers face new fines for illegal working”, 22 November 2007.
(8) Workpermit.com; “Australian job growth and economy strong and growing”, 15 September 2006
(9)  “the economics of migration: managing the impacts” June 2007
(10)  Trades Union Congress “Don’t penalise, regularise!” TUC response to Home Office Prevention of Illegal Working, July 2007.
(11)  Ibid 1.
(12)  Ibid 1.
(13)  Ibid 10.
(14) Ibid 10.
(15)  Home Office Border and Immigration Agency “Prevention of Illegal Working” November 2007
(16)  Home Office Border and Immigration Agency “Shutting down illegal working in the UK”, November 2007 and “Securing the UK Border; Our vision and strategy for the future” March 2007.