Employ the correct measures

What are the consequences of employing illegal immigrants?

Published: 31 July 2014

What are the consequences of employing illegal immigrants?

I heard about quite an interesting case following a conversation with a licensing barrister colleague the other day. Lincolnshire Police had brought a review of a Premises Licence in Grantham, following a raid by officials from the Home Office this May. This intelligence led raid, which Lincolnshire Police were also involved in operationally revealed that there were four workers employed at the premises who were not entitled to work or reside in the UK. Less than a fortnight later the Police brought Review Proceedings against the premises, seeking a revocation of the Premises Licence, primarily under the ‘Crime and Disorder’ Licensing Objective.

The legislation that was referred to in the Review Application was The Immigration, Asylum and Nationality Act 2006. There are two sections in that Act that primarily deal with the employment of illegal immigrants. The most serious of these, under Section 21, relates to an offence of knowingly employing such workers. This is a criminal offence and carries a maximum prison sentence of two years. A further section (15) relates to the employment of illegal workers in instances where the employer was not aware of the immigration status of those employees. This second provision is not a criminal offence but carries a ‘civil penalty’ of up to £20,000 per employee (this figure was recently doubled) which is imposed by the Home Office on the business. The level of this penalty is based on a number of factors, including the scope of that practice within the business, what checks had been undertaken on the employees before and during the period of employment, the employer’s previous record of employing illegal immigrants and the extent of cooperation with the Home Office during the investigation process. In this instance the restaurant had taken copies of passports, visas and national insurance cards as well as employing the services of a company which screens foreign workers, albeit one that wasn’t Home Office approved. There is an internal mechanism within the Home Office for reviewing any civil penalty imposed at the employer’s request, following which the employer can then Appeal the figure, or the imposition of the fine at all, to the County Court.

The Licensing Act Statutory Guidance has something to say on such matters: the wording, ‘knowingly [my emphasis] employing a person who is unlawfully in the UK or who cannot lawfully be employed as a result of a condition on that person’s leave to enter’ was added, last June, to the list of criminal activities where Licensing Subcommittees should consider revoking Premises Licenses at first instance, where there is evidence of such activities at those premises. On that basis, then, unless some knowledge of the status of those employees can be laid at the door of the employer there is no criminality, it does not fall foul of the Guidance, and the Revocation Application should fail – as it did in this instance. The Licensing Subcommittee were clearly not persuaded by Lincolnshire Police that this operator had any knowledge about the illegal status of these employees.

What does this tell us? Firstly that all licensed businesses should have the correct procedures in place to effectively screen employees. Just checking passports and visas is not sufficient for a number of reasons. Businesses should also use screening companies, preferably those recommended on the Home Office website. Furthermore, that process shouldn’t stop at the commencement of the employment, but that checks should be undertaken at least every six months to ensure that the employee’s status is unchanged. Secondly it further demonstrates the increasing willingness of the authorities, often involving more than one agency working in concert with each other, to use the licensing review process as a cost effective and swift means of tackling what they perceive as criminality in licensed premises.

Proving knowledge in another person for any matter isn’t straightforward, but a complete absence of any paper trail in relation to the employment of workers, who subsequently turn out to be illegal immigrants, could lead a Licensing Subcommittee to draw inferences of wilful blindness or worse on behalf of premises. If the systems are in place, even if they are far from perfect, then an unexpected raid by the Home Office, assisted by the local police, need not end in the ultimate sanction of the revocation of your Premises Licence.

With thanks to Duncan Craig, Barrister, of Citadel Chambers for contributing to this article.