This is the first of a new public law blog, Res Publica, written by the public law team at Kent University. As such it may seem a little presumptuous to use our initial tentative posting to offer up legal advice to the Attorney General, Baroness Scotland. The Attorney General is, after all, at the heart of the law. In the domestic sphere she is the law, the government’s adviser and the person who superintends its prosecutors. Yet, as we write, the full rigour of the law is – presumably – about to come crashing down on her because she hired an illegal migrant worker as her housekeeper – a woman who allegedly came to Britain some years ago on a 6-month student visa and had no right to remain.
Let us be clear. There is no suggestion that Lady Scotland knew that Loloahi Tapui-Zivancevic, a Tongan married to a Serbian-born solicitor, was not legally employable in Britain. But let us also be clear: the law does not require an employer to have knowingly employed an illegal migrant before that employer becomes subject to a fine of up to £10,000. The simple fact of having employed such a person makes an employer liable per se. Lady Scotland’s spokesperson declared that “Baroness Scotland has never knowingly employed an illegal immigrant.” (Daily Telegraph 17.9.09, p8) But from a legal point of view not only is ignorance of the law no defence, but ignorance of the offence is no defence either.
The law we are looking at is the Immigration, Asylum and Nationality Act 2006, http://www.opsi.gov.uk/acts/acts2006/pdf/ukpga_20060013_en.pdf brought in by the Labour government when Lady Scotland was a Home Office minister. One of her jobs was to guide such legislation through the House of Lords. The Act came into force on 29 February 2008 (though similar legislation had been in existence since 1997).
The 2006 Act says at Section 15
(1) It is contrary to this section to employ an adult subject to immigration control
(a) he has not been granted leave to enter or remain in the United
(b) his leave to enter or remain in the United Kingdom—
(i) is invalid,
(ii) has ceased to have effect (whether by reason of curtailment,
revocation, cancellation, passage of time or otherwise), or
(iii) is subject to a condition preventing him from accepting the
(2) The Secretary of State may give an employer who acts contrary to this section
a notice requiring him to pay a penalty of a specified amount not exceeding the
So the word “knowingly” is not there. The penalty is payable simply because an illegal worker has been employed. It is a civil penalty (like a car parking fine) not a criminal one. (To knowingly employ a foreign national without proper employment status is, in contrast, a criminal offence and would put an employer at risk of two years’ imprisonment and an unlimited fine.)
There is, fortunately, a let-out. For Lady Scotland, the burden of guilt will remain forever, but the burden of paying the £10,000 may not have to be borne. The act may excuse employers from the fine but only if they had in place a rigorous set of checks before employing the “adult subject to immigration control” of S.15 (1) of the Act.
What Lady Scotland would have had to do before taking on the housekeeper was to demand to see her official papers. Her passport would be useful but it would, in this case, have to be backed by some sort of visa or other documentation proving her right to be in Britain and her right to work here.
Then Lady Scotland would have had to:
examine the material; take a reasonable view on its authenticity; photocopy it; put it away safely where no one could see it or interfere with it; go through the same process every 12 months; and keep the material for two years after she ceased to employ her housekeeper.
She would then have had to make it available when the lads from the UK Border Agency came round, to prove, not that she “never knowingly employed an illegal immigrant”, but that she had checked her housemaid’s documentation, established as far as she could that it gave Mrs Tapui-Zivancevic leave to work in Britain, copied it and kept it safely.
The Act says, again at Section 15:
(3) An employer is excused from paying a penalty if he shows that he complied
with any prescribed requirements in relation to the employment.
(4) But the excuse in subsection (3) shall not apply to an employer who knew, at
any time during the period of the employment, that it was contrary to this
(5) The Secretary of State may give a penalty notice without having established
whether subsection (3) applies.
Subsection (4) is the case of “knowingly” employing an illegal migrant and is dealt with elsewhere in the Act. Subsection (5) makes it very clear that, for the purpose of the civil offence, it only has to be proved that the employee was working unlawfully. The authorities may even send out the penalty notice before the employer can defend himself or herself – since, to all intents and purposes, there is no defence. All an employer can do is show the Border Agency the locked-up filing cabinet where all the photocopies are kept and hope that will be enough to have the penalty reduced or rescinded.
The prescribed requirements are laid out in Article 6 of the Immigration (Restrictions on Employment) Order 2007, No 3290. http://www.opsi.gov.uk/si/si2007/pdf/uksi_20073290_en.pdf
6. The requirements in relation to any documents or combinations of documents produced by an employee pursuant to articles 3 or 4 of this order are that—
(a) the employer takes all reasonable steps to check the validity of the document;
(b) the copy or copies are retained securely by the employer for a period of not less than two years after the employment has come to an end;
(c) if a document contains a photograph, the employer has satisfied himself that the photograph is of the prospective employee or employee;
(d) if a document contains a date of birth, the employer has satisfied himself that the date of birth is consistent with the appearance of the prospective employee or employee;
(e) the employer takes all other reasonable steps to check that the prospective employee or employee is the rightful owner of the document;
(f) if the document is not a passport or other travel document the employer retains a copy of whole of the document in a format which cannot be subsequently altered; and
(g) if the document is a passport or other travel document, the following pages of that document are copied in a format which cannot be subsequently altered—
(i) the front cover;
(ii) any page containing the holder’s personal details including nationality;
(iii) any page containing the holder’s photograph;
(iv) any page containing the holder’s signature;
(v) any page containing the date of expiry; and
(vi) any page containing information indicating the holder has an entitlement to enter or remain in the UK and undertake the work in question.
Given the procedures thus laid out, the excuses to avoid a fine would seem to be quite limited. The documents presented by the potential employee might have been pretty good forgeries; or belonged to someone else and there was no way of knowing. A defence that the employer did not realise he or she was looking at the wrong documents (an invalid National Insurance number, for example) might just wash – but the burden of proof for the Attorney General of England, Wales and Northern Ireland would be rather high.
Lady Scotland may have other employees. She cannot ignore these people even if they are a Bangor-born Miss Rowena Jones who does some gardening or a Surrey-born Mr Andrew Hartley-Smith who offers secretarial services rather than Tongan-born Mrs Tapui-Zivancevic. This is partly a matter of avoiding discrimination, and the Act points employers in the direction of guidance on this issue. (To check only the documentation of those you think may be working illegally might be discriminatory, particularly if you tend to suspect those with foreign names or dark skin.)
But it is also a matter of common sense. Anyone might be pretending to be British or to have a right to work in Britain so everyone’s passport or other relevant documentation must be checked, copied, filed and held for two years after they have left. The government has in effect made every employer an arm of the Border Agency – transferred responsibility for monitoring migrant workers from the state to private companies and individuals and imposed rather draconian requirements to check almost every adult in the country. If the state itself had undertaken such extensive checking, photocopying and filing every time someone changed job there would have been outrage.
So if Lady Scotland employs other people, they must all have handed over their papers for copying. Consider the implications up and down the country. Every employer must make the same checks. On every employee. That’s an awful lot of time to be expended, photocopying to be done and secure space to be found to hold the copies. And an awful lot of employees who will be driven out of jobs they may have had for years.
The proxy role that employers have been given in monitoring immigration is even more extensive under further changes to immigration law. Employers who want to employ foreign workers will now have the job of certifying them before they can be taken on – in many cases before they can be allowed into the country. The employer issues the worker with a “certificate of sponsorship” which is:
“a unique reference number that you issue to the migrant to enable them to apply for permission to enter if outside the United Kingdom (known as ‘entry clearance’), or permission to stay if inside the United Kingdom (known as ‘leave to remain’).”
employ foreign workers and issue their certificates, employers under the sponsorship scheme must have all the systems and checks in place to ensure that they don’t employ foreign workers (at least, not the illegal ones) – in other words they must have those filing cabinets full of photocopies of everybody’s passports thus conforming to the S.15 of the 2006 Act and the 2007 statutory instrument.
So, to sum up: if you want to employ foreign staff you must get accreditation from the Border Agency based on your good record of checking up on your employees; if you don’t want to employ foreign staff you don’t have to get the accreditation but you still have to have all those checks in place just in case you do inadvertently employ a foreign worker subject to immigration control.
This is so mind-bendingly complex it is no wonder that some of the top legal brains in the land (and the Attorney-General must by definition be among them) cannot quite make sense of it. The 2006 law is not new. Similar monitoring requirements have been in place since 1997 (under S.8 of the Asylum and Immigration Act 1996) but only recently, since its repeal and replacement by the new legislation, have some employers started to take it seriously. Lady Scotland should be thanked for the publicity she has brought to a very difficult area of law. Then she should resign.
1) Guidance on ensuring employers have the excuse to avoid a fine and on sponsorship is on the home office website
It notes those who do have a right to work in Britain, ie, are not subject to immigration control
The main groups who are not subject to immigration control in the UK, and who you
can employ without restriction are:
British citizens; and
Commonwealth citizens with the right of abode; and
Nationals from the Common Travel Area (CTA); and
Nationals from European Economic Area (EEA)/European Union (EU) countries and
Family members of adult nationals from EEA/EU countries and Switzerland, providing the EEA/EU national is lawfully residing in the UK.
2) Guidance for sponsors is in the document “Sponsorship Management Systems” which is on the home office website.
3) The requirements for the right to sponsor are set out in this link intended for human resources departments
•keep the following records or documents, and make them available to us if we ask:
•a photocopy or electronic copy of each migrant’s passport or United Kingdom immigration status document (and, in time, their ID card), showing that they are allowed to work or study; and
•not employ a migrant if the conditions on their permission to stay (or the migrant’s lack of permission to stay) mean that they are not allowed to do the job, and stop employing any migrant who stops being allowed to do the job for any reason.”