Employers Get A Role In Immigration Control

Sean Kehoe, Senior Partner at personal injury law firm Advance Legal, has said:

"The problem of illegal migrant workers has pre-occupied ministers over the last few years and the result is a raft of new measures that could increase costs for employers and present some difficult legal dilemmas.

New penalties for employing illegal workers came into force on 29 February 2008. Employers could face a two-year jail term or a fine of up to £10,000 for each illegal worker they hire.

February 29 also saw the introduction of the new Australian style points based immigration system in which foreign workers from outside the EU will be categorised depending on their skills and qualifications.

Foreign workers wishing to work in Britain will be placed in five groups with highly skilled workers in Tier 1 and those with lower qualifications in tiers 2 and 3. Students and temporary workers will be in tiers 4 and 5. Applicants will need to achieve a certain number of points depending of their skills and suitability before they will be given clearance to remain in the UK.

Employers wishing to hire workers in certain tiers will need to have a sponsor licence. The fees are still being set but it’s proposed they should be between £300 and £1000 depending on the size of the firm. Sponsoring firms will then be expected to inform the Border and Immigration Agency if the sponsored employee fails to turn up for the first day of work or terminates his contract.

The agency says it will take compliance seriously and will be prepared to make robust checks on job roles, qualifications and salary. Breaches of the rules could lead to firms being prevented from employing migrant workers.

Even firms that don’t employ or intend to employ migrant workers are likely to be affected by the Government clampdown on illegal workers. The prospect of a jail term or a £10,000 fine for each illegal worker employed means firms need to be careful when taking on staff.

The present law provides employers with a statutory defence against hiring illegal workers if they check and record certain specified documents belonging to potential employees.

This will continue under the new system. However, if employers wish to retain the defence they will be required to undertake repeat document checks at least once a year for employees who have limited leave to enter or remain in the United Kingdom. As is currently the case, the defence will not apply where an employer knows that they are employing an illegal migrant worker.

The problem here is that in making such checks employers could leave themselves open to allegations of racial discrimination.

The Government recognises the dilemma and so the Border and Immigration Agency has offered the following advice:

"It must not be assumed that someone from an ethnic minority is an immigrant, or that someone born abroad is not entitled to work in the United Kingdom."

"Employers who refuse to consider anyone who looks or sounds foreign are likely to be unlawfully discriminating on racial grounds. If document checks are carried out only for prospective employees who by their appearance or accent seem not to be British, this too may constitute unlawful racial discrimination."

"Where complaints of racial discrimination are upheld by a Tribunal, employers can be ordered to pay compensation for which there is no upper limit. Employers have a legal duty under current race relations legislation to avoid unlawfully discriminating on racial grounds and are therefore advised to undertake document checks on every prospective employee. The best way for employers to make sure that they do not discriminate is to treat all job applicants in the same way at each stage of their recruitment process."

Employers could be forgiven for thinking they face a legal minefield whichever way they turn but with the potential penalties so high it is vital that correct procedures are followed."

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