January 8, 2007
Norfolk employers could be hit by hefty fines, and legitimate migrant workers could face hardship under draconian laws which aim to clamp down on illegal workers as part of a tough new stance on immigration.
Employment lawyer Richard Cassel, a partner at Norwich-based law firm Hatch Brenner, believes the government has laid “a minefield for employers” by effectively asking them to act as immigration officials under the new measures, which come into force on February 29.
The Immigration, Asylum and Nationality Act 2006 places the onus firmly on employers to check the status of potential employees. Those who knowingly employ illegal migrant workers could face criminal charges leading to prison sentences and unlimited fines. Meanwhile new civil penalties of up to £10,000 for each offence may be enforced on those who negligently hire illegal workers.
“The potential consequences for the many Norfolk businesses which employ foreign workers – particularly in the agricultural, food and hospitality sectors – could be disastrous,” said Mr Cassel.
“The new legislation places a heavy burden on employers, and the requirement to report in cases of suspicion will lead to uneasy relationships in the workplace. It is absolutely vital for employers to make sure they have adequate systems in place, and to seek professional advice if necessary.”
The new laws require employers to take “reasonable steps” to check the validity of “List A” documents such as passports, residence permits, and national identity cards, and “List B” documents – such as work permits – which will need to be re-examined every 12 months.
Copies of documents have to be taken and retained, and the employer has to check that any photograph or any given date or birth is consistent with the appearance of the employee.
The Government has published a draft Code of Practice, and the Home Secretary, Jacqui Smith, has described the new civil penalties as a “more effective way of dealing with employers that use slipshod or exploitative recruitment methods.”
However, Mr Cassel said it remained unclear what comprised “reasonable steps”, and said the legislation threw up many questions.
“What happens if someone says ‘I’ve lost my passport, but I’ve got my driving licence?’ You can’t do the full check, but the onus is still on you to establish that they’re entitled to work.
“There’s also a serious danger that these measures will lead to real hardship for people who are already working perfectly legitimately, but who have a foreign accent and can’t produce their documents on request to check their validity. What if they’ve lost them, or they’ve been stolen? They won’t be able to work until they can provide documentation. There are serious discrimination issues tied up in all this.
“The requirement for ‘List B’ documents to be checked every 12 months is another major undertaking. And what happens if an employee leaves a business, and then comes back again? The employer might have to begin the entire process again from the start.”
