Is it a criminal offence for migrants to work illegally in the UK?

Working “Illegally”

What does ‘illegal working’ mean?

‘Illegal working’ in immigration terms is defined by the employment of people subject to immigration control who do not have one of the lawful bases for work in the UK These lawful bases for work are a work permit, the Training and Work Experience Scheme, Sectors-based scheme, non-work permit employment  (ministers of religion, seasonal agricultural workers, sole representatives setting up a branch of an overseas firm and domestic workers in private homes); the innovators scheme, the Highly Skilled Migrants Programme and graduate schemes. Any employment carried out that is not legitimised by one of these systems is classed as ‘illegal working’.

When employers take on workers subject to immigration control, there are often further offences being committed as a result. The most common are failing to pay income tax and national insurance  because the employee could be traced if they have these official records. Other unlawful practices by such employers include low pay, breach of health and safety regulations and providing no remedy for employees against unfair dismissal.

What is the law on workers from the new EU member states?

Under the Accession (Immigration and Workers Registration) Regulations 2004, it is a criminal offence to employ a person from new EU member states if they are not registered or in the process of registration (i.e. not authorised to work for the employer). This Registration Scheme does seem to have reduced illegal working somewhat.

How is responsibility for ‘managing migration’ spreading to companies and private individuals?

The spread of immigration control into the wider society can be seen in the sanctions against employers for employing people who are not entitled to work. Employers are responsible for checking employee’s documents; this aspect is not the responsibility of the UK Border Agency according to the Minister of State for Border and Immigration in 2007.

What are the penalties for employers for employing ‘illegal workers’?

The Asylum and Immigration Act 1996 section 8 made it an offence to employ a person subject to immigration control who either does not have valid leave in the UK or is not permitted under the terms of their leave to work in the UK The liability for the employer is simply to employ such a person but there were very few prosecutions under this Act. The fine for the offence was £5,000.

The Immigration, Asylum and Nationality Act 2006 replaced this section with an offence under section 21 which requires the employer to know the immigration status of the employee or at the very least to know that their immigration status prohibits the individual from working. There was a system of civil penalties introduced under the 2006 Act to complement the offence but these penalties do not require the employ to know the immigration status. It is enough to employ a person who is not permitted to work. The civil penalties system came into force on 29 February 2008.

The employer who faces penalties has the opportunity to object and then a further opportunity to appeal any decisions. The Immigration (Restrictions on Employment) Order 2007 contains a statutory defence for employers – this is that they complied with a list of prescribed actions such as requesting sight of specific documents, taking all reasonable steps to check the validity of these documents and keeping the documents safely. Some specified documents, mentioned in the 2007 Order should only be accepted by the employer when combined with others e.g. a birth certificate plus confirmation of a national insurance number is acceptable.

Does this legislation make racial discrimination in recruitment more likely?

From the introduction of section 8 of the Asylum and Immigration Act 1996, representatives of immigrants and minority ethnic groups have expressed concern that such laws would in fact increase racial discrimination. An employer may be more reluctant to recruit a person with which there might be immigration issues in order to avoid the future hassle of potentially paying a hefty fine. It was suggested that employers, through no prejudice of their own, would be likely to make this kind of decision in relation to an applicant from an ethnic minority group.

The Immigration, Asylum and Nationality Act 2006 issued a code of practice for employers under section 23. It included guidance on how to avoid race discrimination at the recruitment stage whilst still complying with the Act in terms of checking specific documents. This code of practice has also been in force since 29 February 2008.

How else can employers be involved in immigration matters?

Under section 134 of the Nationality, Immigration and Asylum Act 2002, employers may be ordered by the Secretary of State to produce and retain documentation in order that it may be supplied to the Secretary State. This documentation may be requested from the employer if an individual is suspected of having committed an offence under the Immigration 1971 such as illegal entry, obtaining leave by deception or fraud in relation to asylum claims and support. Documentation can only be requested in relation to certain things including the employee’s earnings, the employee’s history of employment or information in order to discover the current location of the employee.

It is an offence for an employer to fail to supply this information without a reasonable excuse, under section 137 of the 2002 Act. Section 139 says that information pursuant to a request from the Secretary of State under section 134 may not be used as evidence in criminal proceedings. This means that if the information provided by the employer relating to an employee demonstrates some offence committed by the employer (such as failure to deduct national insurance or tax), this cannot be used against them in trial.