Crackdown on illegal working, employers beware
Amjad Malik, an Immigration specialist specially writes:
Recent media reports of raids at Restaurants, TV stations and Asian warehouses operatives all around the country have raised a vital public importance issue of "˜illegal working' in our society and a very little support and or information available in the arena. Any victim may be the first in the family and if his offices are raided by the UK Border and Immigration Agency, then he may be up to pay a hefty fine if he has not carefully employed his staff. If you are an employer working in the UK, beware that a little careless, and your business may suffer a great loss.
From 29 February 2008, an Employer based in the UK may be liable to pay a civil penalty if they employ someone who is: subject to immigration control; aged over 16; and not entitled to undertake the work in question. Civil penalties can be up to £10,000 per illegal worker. A notice of liability to pay a civil penalty of a specific amount can be served by Border and Immigration Agency officials on behalf of the Secretary of State.
It is contrary to section 15 of the immigration, Asylum and Nationality Act 2006 to employ an adult to subject to immigration control if: (a) they have not been granted leave to enter or remain in the United Kingdom, or (b) their leave to enter or remain in the United Kingdom is invalid, or has ceased to have effect (whether by reason of curtailment, revocation, cancellation, passage of time or otherwise), or is subject to a condition preventing them from accepting the employment. Under section 15, an employer may be liable to payment of a civil penalty for employing an illegal migrant worker not exceeding £10,000 per worker. If you are the unlucky employer who had a recent visit and UKBA found immigration offenders at the place of business, and Immigration officials have identified a potential breach of section 15, then the details of your case will be passed to the Illegal Working Civil Penalty Unit, in the Border and Immigration Agency. You will receive a letter from the Border and Immigration Agency within 7 working days of the date of the visit or first notice which will detail whether or not you face any liability. If you do face a liability the letter will inform you of the monetary fine for which you are liable and also provide you with details of how you can demonstrate an excuse and relevant grounds to object or appeal against the civil penalty.
An employer is entitled to appeal to the local County Court (Sheriff Court in Scotland) if he believes that he is not liable to the imposition of the penalty, have complied with any prescribed requirements in relation to the employment of his employees, or that the penalty raised is too high. If he lodges objections, then he must wait for the outcome of the objection, however if the objection is refused he has just 28 days within which to submit an appeal to the County Court on Form N161 which attracts a Court fee of £120.00.
If you have evidence to support that you are fined wrongly, you can object and submit all material facts with the objection notice. You can also object to a penalty on the grounds that: you are not liable to the imposition of a penalty; or you are excused from paying because you have established a statutory excuse; or the amount of the penalty is too high. Under the new law, you will have an excuse against liability to pay a civil penalty for employing an illegal migrant if you check and copy certain original documents before someone starts working for you. If the person has a time limit on their stay in the UK, you will also have to carry out repeat checks on their documents at least once a year to have the excuse. The objection must be submitted in writing to the Illegal Working Appeals and Finance Section, 4th Floor 4M Building, Manchester Airport, Manchester, M90 3RR.The objection must be submitted on an IWCP- 4 pro-forma .
You could face any of the following penalties if found to be in breach of the law, You may get one of the following:
· written warning for employing an illegal worker, followed by close attention from UK Border Agency enforcement and compliance teams;
· being downgraded on the register of sponsors. Your rating will be published, and prospective migrants will be able to see it. A B-rating will involve a detailed action plan of measures that you must comply with;
· licence cancelled and removed from the register of sponsors, so you are unable to bring any migrant worker to the United Kingdom or keep any existing migrant;
· served with an on-the-spot fine (known legally as a civil penalty) - if UK Border Agency finds that you are employing an illegal migrant worker because of negligent recruitment practices, UKBA may issue you with a civil penalty for each illegal worker (under section 15 of the Immigration, Asylum and Nationality Act 2006). A sliding scale allows heavier penalties for repeat offenders;
· prosecuted for having in your possession or under your control without reasonable excuse an identity document that is false or improperly obtained or that belongs to someone else, which may result in you being imprisoned for up to two years and/or receiving an unlimited fine (under section 25 of the Identity Cards Act 2006);
· prosecuted for knowingly employing an illegal migrant worker - you could be imprisoned for up to two years and/or receive an unlimited fine (under section 21 of the Immigration, Asylum and Nationality Act 2006);
· disbarred as a company director or officer as a result of prosecution - if you are convicted of knowingly employing an illegal migrant worker, you could be disqualified from forming or managing a company (under section 2 of the Company Directors Disqualification Act 1986); or
· prosecuted for facilitation or trafficking - you could be imprisoned for up to 14 years and/or receive an unlimited fine (under section 25 of the Immigration Act 1971, as amended by section 4 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004.
From 25 November 2008, a new visa system has come into force where by an employer shares the responsibilities by seeking a licence if he wishes to sponsor a foreign skilled work force and employee needs to meet the minimum 70 points to secure entry visa to work for a specific employer in UK. This new regime has changed the law towards Minister of Religion, Airport based operational and ground staff, overseas nurses, sabbatical posts, seafarers, researchers, training and work experience scheme, Jewish agency employees as well as overseas news and media representatives who all are required to successfully secure 70 points to work for a licensed employer.
I feel strongly about the people who are still working under the carpet and Government is failing to address the issue of current backlog which is around a million consisting of existing failed asylum seekers, overstayers, and families with children living in Brain for over 5 years. Migration watch estimates the figure 870,000 though Home Office accepts around 570,000 which is still being economical with the truth. Immigration Minister Liam Byrne was saying in 2007 that "To combat illegal immigration it is not enough to stop illegal journeys. We have to close down the illegal jobs that tempt people to try their luck coming to Britain. That means making it easier for companies to check whether someone is here legally "“ but also coming down much harder on businesses which break the rules or turn a blind eye. "so alongside compulsory ID cards for foreign nationals will come bigger, and faster fines for those who break the law."Similar frenzy was caused by the newly appointed Minister for Immigration targeted Immigration lawyers and some of the NGO's for immigration Department's failure to calculate the exact number of those working in black economy and remaining in UK illegally. He said in an interview with Patrick Barkham published in the Guardian on Tuesday 18 November 2008, that "It is "difficult", he says, but "most asylum seekers, it appears, are economic migrants."
I have always been a supporter of the idea that the current Home Secretary should consult with her colleagues in govt. & all stakeholders to chalk out a strategy to bring all those in the net who are working in our black economy. The ideal practical way is by clearing a backlog by granting a General Amnesty by granting working visas to all those who are here in UK and are willing to come on books on the condition that they register themselves within certain grace period and have no criminal conviction. This is the way that half of the measures UKBA is suggesting will automatically addressed, people they are tracing. This can reduce fraud which is in billions, curb illegal working and increase taxes in Govt's public purse. Having said that, there is no excuse of not complying with the law as ignorance of law is not an excuse. However, I admit that there is a little information available in this domain, but advice and information relating to good practices, potential breaches and civil penalty notices may be sought from OISC listed advisors, Legal Services Commission Franchised firms in the respective areas and or by calling the Law Society No. 0207-242 1222 to choose a lawyer of one's own choosing. If you are the unlucky recipient of UK Border Agency's visit, please seek help before its too late. You may also use the employer helpline provided by the Immigration & Nationality Department which can be contacted on 0208-649 7878, if you are in doubt of the status of any employee. Its better to be prepared, rather than attacked unguarded.
Amjad Malik is a Solicitor-Advocate of the Supreme Court of England and Wales and is a Member of Immigration Law Committee of The Law Society of England & Wales
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