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24_ILLEGAL WORKING

Relevant Legislation

 The Immigration, Asylum and Nationality Act 2006 (the "the 2006 Act”1)

 The Immigration (Restrictions on Employment) Order 2007 (S.I.


2007/3290) (the "2007 Order")

 The Immigration (Employment of Adults Subject to Immigration Control)


(Maximum Penalty) Order 2007

Background

1. The UKBA illegal working regimes tackling illegal working are provided for in
the Immigration and Nationality Act 2006 (the 2006 Act) which came into force
on 29 February 2008. Prior to this, illegal working was covered by the Asylum
and Immigration Act 1996.

2. The scheme creates both civil and criminal liability and focuses on the
„employer‟ rather than the individual who is working without
permission/clearance.

3. In respect of both types of liability, it should be noted that the provisions in the
2006 Act only concern persons subject to immigration control, which in each
case means a person who under the Immigration Act 1971 requires leave to enter
or remain in the United Kingdom. 2

Illegal working: Civil Liability Regime

Outline of Regime

4. Civil liability attaches to an „employer‟ of a person who is subject to


immigration control and who does not have prior permission (expressly or by
operation of law) to undertake the work he is employed to perform. A penalty of
up to £10,000 in respect of each illegal worker can be levied against an
employer.

1
Sections 15-25.
2
EEA nationals are not included and are dealt with separately in the Accession (Immigration and
Worker Registration) Regulations 20042 and the Accession (Immigration and Worker Authorisation)
Regulations 20062 (together, the “EEA Regulations”).

1
5. A defence (or „excuse‟) to any Notice of Potential Liability (NOPL) can be
relied upon by the employer if he/she can demonstrate they took steps before the
employment commenced (and in certain instances at 12 monthly intervals
thereafter) to confirm the employee was being employed lawfully. Such
measures include checking and copying certain specified documents relating to
the employee.

6. If a penalty is imposed – i.e. the NOPL results in a Notice of Liability (NOL) -


the employer can challenge the imposition of the penalty and/or the level at
which it has been set by raising an objection with the Secretary of State and by
appealing the UKBA decision to the County Court.

Key legal issues

7. The regime has now been in place for almost two years. It‟s possible to identify
a number of legal issues that have arisen during this time:

(a) maintaining the distinction between civil and criminal penalties3


(b) Definition of employer
UKBA should not “pierce the corporate veil” where the employer is a
limited liability company (Kungv SSHD (Birmingham County Court));
(c) Unpaid employment
Evidence of remuneration is necessary for paid employment (Bulut v
SSHD (Northampton County Court))
(d) Ability to pay
Consideration of means (ability to pay) is an important element of setting
the penalty (Bakabala v SSHD (Cardiff County Court) Miah and Amin v
SSHD (Ipswich County Court))

Facts and figures

29 February 2008 - 31 August 2009:

 3509 Notices of Potential Liability (NOPLs) issued by enforcement staff;


 2734 NOLs (with a potential value of £26,126,250) issued;
 72% served upon owners of restaurants and takeaways;
1951 objections have been received
 In 60% of these cases the initial decision were upheld;
288 appeals were lodged by employers with the County/Sheriff‟s Courts.
 179 appeals have concluded, of which 108 (60%) resulted in a favourable
outcome for the UKBA; and
 A total of £2,559,771.42 in penalty payments has been recovered, with 230
employers paying penalties in full

3
See separate note on Civil Penalty Regime and compatibility with Article 6 ECHR.

2
Illegal working: Criminal Liability

8. A new criminal offence of knowingly employing an illegal worker was created


under the 2006 Act. This new offence (unlike the one it replaced under section 8
of the Asylum and Immigration Act 1996) carries a maximum custodial
sentence. A person commits a criminal offence if he employs another person
(employee) if he knows that the employee is an adult subject to immigration
control and he is not entitled to carry out the paid employment he is being
employed to undertake (Section 21 of the 2006 Act).

9. A person guilty of an offence of knowingly employing an individual who does


not have the requisite permission to carry out that employment, shall be liable:
- on summary conviction to a maximum of 12 months imprisonment in
England & Wales4; or
- on indictment to a maximum of 2 years imprisonment and/or a fine.

10. An offence under this section is treated as a relevant offence for the purposes of
sections 28B & D of the IA 1971 (search, entry and arrest) and an offence under
Part III of the 1971 Act (Criminal Proceedings) for the purposes of sections
28(4), 28E, 28G and 28H (search after arrest)- s.21(3) IANA 2006

11. Powers of arrest with warrant and search for personnel records as contained in
s.8 AIA 1996 granted for the purposes of s21 of IANA 2006 – ss.27 - 28 UK
Borders Act 2007 („UKBA 2007‟)

Offence: bodies corporate etc.

12. For the purposes of s.21(1) a body shall be treated as knowing a fact about an
employee if a person who has responsibility within the body for that aspect of
the employment knows the fact - s.22(1) IANA 2006

13. If an offence under section 21(1) is committed by a body corporate with the
consent or connivance of an officer of the body, the officer as well as the body
shall be treated as having committed an offence. A reference to an officer or
body includes a reference to a director, manager or secretary, a person
purporting to act as such and if the affairs of the body are managed by its
members, its members. Same in relation to partnerships - s.22 (2)-(4)) IANA
2006

4
s.21(2) IANA 2006

3
Operational/Policy Guidance

 The UKBA web page on Preventing Illegal Working


(http://www.ukba.homeoffice.gov.uk/employers/preventingillegalworking/)
has the following useful publications:

- Comprehensive guidance for employers on preventing illegal working,


February 2008;
- Summary guidance for employers on preventing illegal working, April
2009;
- Civil penalties - code of practice, February 20085;
- Avoiding unlawful discrimination - code of practice6, February 2008;
and
- New measures for preventing illegal migrant working in the UK -
What employers need to know, March 2009.

 The employing migrant workers pages of the Business Link:


www.businesslink.gov.uk.

02/11/2009

5
Pursuant to section 19 of the 2006 Act
6
Pursuant to section 23 of the 2006 Act.