The influx of both illegal and legal migrants, which is expected to increase when Romania and Bulgaria join the EU, has led to the introduction of controls intended to prevent illegal working.
Criminal sanctions are believed to be an appropriate deterrent to the employment of illegal staff – be they illegal entrants or legal entrants wanting to work illegally – but is the burden of responsibility now falling too heavily on employers’ shoulders?
Under Section 8 of the Asylum and Immigration Act 1996, it is a criminal offence to employ a person subject to immigration control unless they:
- have leave to remain in the UK
- can take up the type of work on offer.
If convicted of employing an illegal worker, employers can be fined up to £5,000.
There is a statutory defence, but it is only available if, before employment begins, the employer approved certain documents confirming the individual’s entitlement to work, kept a record of those documents, and was satisfied that the paperwork related to the individual who produced it by checking photographs and date of birth against appearance.
This is called a ‘Section 8’ check. While it is not mandatory, it is advisable to undertake the check, as failure to do so prevents an employer from relying on the statutory defence, and could therefore result in a fine for the company.
So, employers can rely on the statutory defence if, before employment begins, they are satisfied that an individual, based on the content of the documents produced, is entitled to undertake the type of work on offer.
However, employers should also be aware of the requirement for some, but not all, European Economic Area/EU migrant nationals to register under the Worker Registration Scheme. Otherwise, employers commit a further offence for failing to ensure worker registration.
To add to the complexity, employers are advised to undertake Section 8 checks to comply with the relevant provisions of the Race Relations Act 1976, the Immigration and Asylum Act 1999, the Code of Practice on Recruitment, and the Data Protection Act 1998 and its codes.
On the lookout
Faced with the risk of criminal conviction, employers find themselves with front-line responsibility to prevent illegal working. Does this mean employers have become, by default, quasi-immigration officials? They are required to identify, from immigration papers, passport stamps and endorsements, whether someone has a right to undertake the type of work available, yet documents often lack clarity and may be forged.
Worryingly, there are many ill-informed, non-compliant employers who still accept National Insurance numbers or ‘short’ birth certificates as satisfactory evidence of entitlement to work, and they are at risk of criminal conviction.
Others, as a consequence of red tape, are reluctant to recruit an ethnically diverse workforce or use the skills of foreign workers for fear of inadvertently falling foul of the law.
However, if HR does not undertake adequate pre-employment checks, it runs a real risk of employing an illegal worker.
It is ironic that employers can, without committing a Section 8 offence, contract with anyone who is ‘self-employed’, as these workers do not fall within the remit of Section 8. Clearly, this undermines the intended purpose of Section 8, namely to prevent illegal working, as does the lack of obligation on employers to report suspected illegal workers to facilitate enforcement.
There is a real danger that Section 8 checks will lead to discrimination by some employers against those who appear to be foreign because they do not want to risk prosecution, nor pay the related increased costs of recruitment, staff training, or document storage.
To make Section 8 effective, employers must be properly informed of their responsibilities and have access to adequate support mechanisms to help them check eligibility and status.
It is only right to do so when action against illegal migrants includes targeting the employment of illegal workers by imposing criminal sanctions.