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.
For more information on:
- Does this legislation make racial discrimination in recruitment more likely?
- How else can employers be involved in immigration matters?