The introduction of the Immigration, Asylum and Nationality Act 2006 (the 2006 Act) has reinforced the law relating to the prevention of illegal migrant working in the UK. This new Act supersedes the controls previously provided for by section 8 of the Asylum and Immigration Act 1996.
A key role of the UK Border Agency (UKBA) is to provide guidance and support to help employers comply with the regulations and Codes under the 2006 Act. However, the UKBA is also well equipped impose strict penalties and in some instances to prosecute employers who fail to undertake their legal responsibilities.
Committing an offence
As an employer you will be deemed to have committed an offence if you are found to be employing a person aged 16 or over who is subject to immigration control unless that person has current and valid permission to be in the United Kingdom, and the person has valid permission to do the type of work for which you have employed them.
Civil and criminal penalties
Under the civil penalty system for employers (introduced on 29 February 2008), employers found to be using illegal migrant workers will be served with a Notification of Potential Liability (NOPL) and a civil penalty of up to £20,000 per illegal worker.
The penalty system operates on a sliding scale based upon the nature of the eligibility checks undertaken by employers, the number of occasions on which a warning has been issued or civil penalty imposed, and the degree of co-operation provided to the UKBA by the employer.
The new civil penalty scheme sits alongside a tough new criminal offence of knowingly employing an illegal migrant worker. This will be used in the more serious cases where rogue employers knowingly and deliberately use illegal migrant workers, often for personal financial gain. This will carry a maximum two year custodial sentence and/or an unlimited fine.
Establishing a statutory excuse
Despite the introduction of new civil penalties, the 2006 Act also provides employers with the opportunity to protect themselves against liability by checking and copying the original documents of a potential employee prior to employing them.
If you can prove that you complied with the document checking and storage requirements you may be excused from liability from any penalty, even if it turns out that the person you have employed is subject to immigration control and is working without the necessary permission. For specific details of the documents you should check and store, please contact us.
Details of penalties
If you are found to be in breach of your sponsorship duties as a licensed employer you may be subject to any of the following penalties:
- you may be given an action plan listing the steps that as a B-rated sponsor you must undertake in order fully to comply with their sponsorship duties and obtain an A-rating;
- you may be given a written warning for employing an illegal worker, followed by close attention from our enforcement and compliance teams;
- your rating on the register of sponsors may be downgraded.
- your licence may be cancelled and you may be removed from the register of sponsors, meaning your organisation will no longer be able to sponsor existing migrants or bring any migrant worker to the UK;
- you may be served with an on-the-spot fine (known as a civil penalty). If found to be employing an illegal migrant worker as a result of negligent recruitment practices, then you could be served with a civil penalty for each illegal worker found.
- you may be prosecuted for having in your possession or under your control without reasonable excuse an identity document that is false or improperly obtained or which belongs to someone else. For this offence employers can be imprisoned for up to two years and/or receive an unlimited fine;
- you may be prosecuted for knowingly employing an illegal migrant worker and be imprisoned for up to two years and/or receive an unlimited fine;
- you may be disbarred as a company director/officer as a result of prosecution.
- you may be prosecuted for facilitation or trafficking and could be imprisoned for up to 14 years and/or receive an unlimited fine.