Employers' Responsibilities

Section 8 of the Asylum and Immigration Act 1996

The penalties for employing someone illegally have become very severe.

The Asylum and Immigration Act makes it the responsibility of employers to ensure that all employees are not in breach of the Immigration Rules. It also imposes sanctions on employers who fail to conform to the Immigration Rules. The employer is liable for a £5,000 fine for each employee in breach.

United Kingdom employers should not be misled by the title of the Asylum and Immigration Act. Its purpose is not solely to control political asylum applicants but it is aimed at all immigrants into the United Kingdom. Previous legislation had proved to be inadequate. In an attempt to counteract the growing use of illegal workers and to provide effective sanctions, Section 8 of the Act introduced a specific offence of employing person who is not permitted to work in the United Kingdom. In the event of the employer being a company, the person responsible for overall management may face prosecution.

Elements of the offence

Section 8 of the Act is quite clear. It is an offence for an employer to:

employ an employee when that employee is over 16 years old and that employee is subject to immigration control in the United Kingdom, and
(a) the employee has not been granted leave to enter or remain in the United Kingdom, or (b) the employee's leave is not valid and subsisting, or is subject to a condition precluding then from taking up the employment and, in either case, the employee does not satisfy such conditions as may be specified in an order made by the Secretary of State.

Statutory defences open to the employer

In order to establish whether or not an employer has a defence to an offence under s.8(1), the employer should refer to s.8(2) of the Act.

Employers should note that the burden of proof falls upon them to establish that a defence exists. It is not, as is usual, for the prosecution to establish that an offence has occurred. In order to establish a defence, an employer will have to show that before employment commenced a document was shown to the employer which:

appeared to the employer to relate to the employee;
was one of those set out in the specified list made by the Secretary of State to the Home Office;
appeared to be an original.

Specified list of employment documents

The specified list follows, and is detailed in the Immigration (Restrictions on Employment) Order 1996 SI 1996/3225:

a document issued by a previous employer, the Inland Revenue, the Benefits Agency, the Contributions Agency or the Employment Service which states the National Insurance Number of the person named (eg a P45, a National Insurance card or a P60);
a passport describing the holder as a British citizen or as having the right of abode or an entitlement to readmission to the United Kingdom;
a certificate of registration or naturalisation as a British citizen;
a passport containing a certificate of entitlement issued on behalf of the UK government certifying that the holder has the right to abode in the UK;
a birth certificate issued in the UK or Republic of Ireland;
a passport or national identity card issued by a state which is party to the European Economic Area Agreement and which describes the holder as a national of that state ( the EEA is formed by the members of the European Union plus Iceland, Liechtenstein and Norway);
a passport which shows that the holder has indefinite leave to enter or remain in the UK or has no time limit placed on his or her stay or remain;
a letter issued by the Home Office confirming that a person has indefinite leave to enter or remain in the UK;
a passport or other travel document endorsed to show that the person named has current leave to remain in the UK and is not precluded from taking employment;
a UK residence permit issued to a national of an EEA state;
a passport or other travel document endorsed to show that the holder has a current right of residence in the UK as the family member of an EEA national;
a letter issued by the Home Office indicating that the person named in the letter is a British citizen or has permission to take employment;
a work permit or other approval to take the employment in question;
a passport describing the holder as a British Dependent Territory Citizen which indicates the status derives from a connection with Gibraltar.

Breaches of Section 8 of the Asylum and Immigration Act 1996

In the current climate in which immigration issues are topical news, employers can expect the authorities to be tough on illegal immigration. Any breaches of the Immigration Rules are dealt with by the Home Office. The Home Office enforcement teams are each responsible for a particular catchments area in the United Kingdom. Even though the Home Office does not engage in "fishing trips" by making surprise random raids on employers in order to inspect the immigration status of employees, they are duty bound to investigate any breaches of the Immigration Rules that come to their attention. Employers who are brought to the Home Office's attention as being in breach are in real and unnecessary risk of investigation by the Home Office. Any adverse findings will lead not only to the possibility of prosecution under the Act but also to closer scrutiny of any further application for work permits and any further dealings with the Home Office.