Section 21 Immigration, Asylum and Nationality 2006 makes it an offence for an employer to employ anyone knowing or having reasonable cause to believe that they are a ‘disqualified person’.
What is a disqualified person?
A disqualified person is:
- a person who has not been granted leave to enter, or leave to remain in the UK; or
- a person whose leave to enter or remain in the UK is invalid, or has ceased to have an effect (by reason of curtailment, revocation, cancellation, the passage of time or otherwise), or is subject to a condition preventing the person from doing that kind of work.
Who can be found guilty?
It is notable that a corporate body can be guilty of this offence, as well as an individual. A corporate body will be deemed to have knowledge that an employee was working illegally if a ‘person who has responsibility’ within the corporate body knows this. This also applies to unincorporated bodies such as charities. A ‘person who has responsibility’ can include an officer such as a director or secretary or anyone who puts themselves forward as such but is not limited to this and the definition can be wider.
What should you do as an employer?
One of the first important things for an employer to do in a situation where they face prosecution is to consider whether the alleged illegal worker, is indeed an employee. In assessing this scenario, it is worth taking into account the definition of employment which is ‘employment under a contract of service or apprenticeship, whether express or implied and whether oral or written’.
The Home Office guidance in respect of this offence expressly excludes; self-employed persons where they are genuinely self-employed, employees of a separate contractor, or, workers from an employment agency who are employees of the agency.
A volunteer could be considered an employee, particularly if they are receiving payments in kind, such as food and/or board.
How will the case evolve?
An immigration officer has the power to conduct the criminal investigation, to arrest and to interview any suspects, however, it is common for the police to be involved at the outset. Even if a suspect is not arrested, they can answer questions on a volunteer basis, if this is done then a suspect is still entitled to legal representation, as of course, they are if they are arrested. The Crown Prosecution Service will have the final say on whether to prosecute, as with other criminal cases.
If a decision is made to prosecute then it’s important that legal submissions are made to address, commonly, whether a civil penalty notice is more appropriate in the circumstances. It should also address the mitigating circumstances. Be aware that prosecutions are rare, and it may be all parties involved may have limited experience in dealing with perpetrators.
What is the penalty?
The offence of employing a worker whilst knowing or having reasonable cause to believe that they are a disqualified person has a maximum penalty in the magistrates Court of up to 6 months imprisonment and up to 5 years in the Crown Court. There is also an unlimited fine available. There is likely to be costs ordered in respect of this type of offence.
Secure legal representation
It is important that a person who believes they are going to be subject to prosecution has representation that includes a representative with specialist immigration knowledge and not purely a criminal background. This may involve instructing two representatives to assist.
It’s worth noting that the timing of the alleged employment and the prosecution are important in this offence. This offence only came into force on 12 July 2016, therefore if an employee was employed before this date a person may be less likely to be subject to prosecution.