An article has appeared recently in ‘Scots Law Times ’ containing useful information for employers accused of employing illegal workers. Under the Immigration, Asylum and Nationality Act 2006, which came into force in 2008, the UK Borders Agency can fine employers when they think that the employer has been employing an immigrant who lacked permission to work. The maximum penalty is £10,000 for each occasion of finding each worker, so the total amount of the fine can quickly mount up. The legislation was introduced to protect vulnerable workers from being exploited. It seems however that the Home Office use it mainly against small immigrant run businesses who lack understanding of the system or of their rights. The article points out that Baroness Scotland, the government minister who piloted the legislation through the Lords, fell foul of the scheme when her Tahitian housekeeper was found to be an overstayer. As the article points out, if one of the main architects of the legislation does not understand it, it is hardly surprising that small businesses find it difficult.
The scheme requires employers, of any size (including individuals, such as the Baroness) to keep careful records every time they employ a person subject to immigration control, and to check their records regularly. The Government publish regulations and a Code which set out in great detail what records employers should keep and what checks they need to make. The whole scheme is complex and needs some legal understanding to navigate, something small businesses often lack, especially when they are owned by people relatively new to the UK.
The article explains how employers served with Notice of Civil Penalty for allegedly employing an illegal worker can file an objection to the Home Office and then, if that does not succeed, they can appeal to the Sheriff. The article contains helpful practical guidance on the procedure for objecting and appealing. It stresses a number of points. Time limits for objecting and appealing are very tight, and strictly enforced, so anyone served with a Notice of this kind should take it to their solicitor right away. It seems that the Home Office will generally enter into negotiation if an objection or appeal has been filed, and indeed generally it seems the Home Office takes a reasonable approach to such negotiation. What the Home Office, perhaps understandably, seems not to forgive, is the employer who sticks his head in the sand and hopes it will all go away. The article therefore shows the importance of involving your solicitor as soon as possible.
Two other important issues that the article emphasises are, first, that it is for the Home Office to prove its case. The burden of proof is on the Home Office to prove that the person was employed, and that he or she was illegal. That is often a difficult question, since immigration law is very complex. A worker may appear to be illegal but on closer examination turn out not to be. This area needs specialist advice from an immigration lawyer. The second important point is that the scheme prescribes maximum penalties, not fixed ones. Ultimately a Sheriff has to decide whether there are mitigating circumstances justifying reduction of the penalty, or perhaps even substituting a financial penalty with a written warning.
The article explains that, because the scheme is still quite new, there are a number of legal issues that are still to be resolved. So, for example, it is not clear what the standard of proof which the Home Office has to discharge. The article argues that it should be the criminal standard of ‘beyond all reasonable doubt”, not the lower civil standard. Other issues which are still to be resolved by further litigation are whether there is a right of onward appeal from a decision of the Sheriff, and whether in Scotland there is a power to award legal expenses against the unsuccessful party.
To summarise, if you are an employer who has been served with a Notice of Civil Penalty for employing an illegal worker, you need to go right away to see your solicitor.