the consequences of employing illegal workers

Posted on In Focus Jul 2010 - by Tandoori Magazine
the consequences of employing illegal workers

Immigration lawyer Maria Fernandes looks at the price paid by employers who take on illegal workers in their business.


Now that the election is over and the Liberal Democrats have abandoned their plan to introduce a one-off amnesty, the issue of illegal workers will continue to haunt employers particularly within the hospitality industry.


Legal responsibilities for employing staff only began on January 27, 1997. Employers who did not check the entitlement to work, of staff employed before this date, are not liable to sanctions if such individuals are found to be working as illegal migrant workers.


In 1997 a criminal offence and a fine of £5000 was introduced but enabled the employer to establish a statutory defence where they had carried out specific checks. The checks that are required depends on the date of the employment of the worker and the law that existed then. The law has been tightened up over the past few years.
The current regime applies to those employed on or after February 29, 2008. The maximum fine is £10,000 per person but is reduced where it is the first raid, and there has been co-operation by the employer. £5,000 is currently the normal amount.


The duty is a civil one and only affects those who are employed and not the self-employed - for example contractors. The obligation is to check the right to work before a person begins employment and follow up these checks every 12 months.


There are specific lists of documents that must be checked and further information on the document lists can be found on the UKBA website. As employers, particularly restaurants, are raided on a regular basis it is vitally important to have a clearly documented system easily accessible to prevent a prolonged visit should there be one. An employer should insist that the officers check the records available.


The information that we have received from cases is that aggressive and arguably unlawful means are used to extract information. Customers as well as employees are prevented from leaving, there are sometimes dogs, people are forced to sign statements without reading and agreeing with them and the officers concerned do not appear to be interested in speaking to the owner or manager. It appears that they do not look at documents and are not interested in any explanations.


Where there is a raid and illegal workers are found on the premises, a notice of potential liability is served on the day. The Illegal Caseworking Team then consider the case and decides whether to impose a penalty or not.


An employer has 28 days to respond from the service of the notice. An employer can either apply for a review and appeal to the county court at the same time, or apply for a review first and then depending on the outcome, appeal within 28 days. It is advisable to follow the first option as it may avoid the need for an appeal and if it does not, it allows a further 28 days for an appeal to be lodged. When responding, the defendents will be in the dark about the evidence that is being relied used. They will only see documents once the appeal process begins and only then when they are assertive about obtaining them.


For those who accept liability it is possible to negotiate payments by installment. It is important to remember that the UKBA have 28 days to respond and if they do not do so, it is possible to challenge the legality of the proceedings.


Finally, if a penalty is imposed, this is not the end of the matter. The UK Border Agency place the details of the employer and the fine on their website which is available to the public. It is called “naming and shaming”. For the future it may also have a significant impact on the grant of a sponsor licence or may result in a licence being withdrawn or suspended.


Employers have responsibilities towards staff which at times border on the ridiculous. Anyone reading the booklet produced by the UKBA which runs into several pages, would not be able to understand never mind follow it. The helpline is very limited in the help it can offer.


The process of establishing status is complicated and if employers are being asked to monitor the status of individuals, these small businesses at least should receive free help to do so. The process of the raid itself appears to be unfair, unlawful in some cases and a traumatising event personally and for the business. Criminals appear to have more rights to civil liberties than employers.


Many employees do not have the funds to appeal and are therefore forced to accept the status quo. Many end up closing their businesses. There are also concerns that the process is used to raise funds for the UKBA. What is required is total transparency, fairness and help. For any enquiries please call 020 8733 0123 or email info@fernandesvaz.com.

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