As many of you will have seen in the news, the Attorney General, Baroness Scotland, was fined £5,000 this week, following an investigation by the UK Border Agency which discovered that her housekeeper was not legally permitted to work in the UK!
Although Agency officials found that Baroness Scotland had not knowingly employed an illegal immigrant and had, in fact, taken some steps to check Mrs Tapui-Zivancevic’s paperwork beforehand, the fine was imposed because the Baroness had failed to retain copies of the documents she was shown and, therefore, had no means of evidencing this information or the intimation that her housekeeper had suggested she had leave to remain in the country.
Suffice to say, the episode has been extremely embarrassing for the Attorney General, the country’s most senior law officer, and serves as a cautionary tale and a timely reminder to anybody employing foreign nationals to ensure that proper checks are completed and adequate records are maintained.
Employers need to be aware that there are now two relevant regimes which deal with illegal working. The position for those employed between 27 January 1997 and 28 February 2008 is governed by the provisions of the Asylum and Nationality Act 1996 whilst the regulations for those employed from 29 February 2008 onwards are governed by the provisions of the Immigration, Asylum and Nationality Act 2006, which came into force last year.
As well as retaining a criminal offence of knowingly employing an individual who does not have permission to lawfully undertake work for which they are employed, the 2006 Act has also introduced a civil penalty – a fine of up to £10,000 – where employers negligently employ someone without the requisite permission to work. All of this means that it is now far easier for the UK Border Agency to impose sanctions on employers.
Briefly, an employer may be excused from a civil penalty fine if they are able to demonstrate that they complied with a number of prescribed steps before employing the individual, in the course of which the employer must ask to see (and satisfy themselves of the validity of) original documents, which establish the individual’s eligibility to undertake the work offered. You must also remember that the documents required vary depending on whether the individual in question is subject to immigration control or has no restriction on the length of their stay.
Whilst a fine of £5,000 may not have “broken the bank” for the Attorney General, the same may not be said for other employers. So, if you would rather avoid a hefty fine and, worse, a criminal record and up to 6 months imprisonment, why not let the Employment Team at Bolt Burdon help you keep your house in order.