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Immigration (Employment of Adults Subject to Immigration Control) (Maximum Penalty) Order 2007

Volume 697: debated on Thursday 13 December 2007

rose to move, That the draft order laid before the House on 22 November be approved.

The noble Lord said: My Lords, the purpose of this order is to set the maximum level of civil penalty for employers of illegal migrants at £10,000 per illegal worker. It is imperative to take steps, as part of the implementation of our immigration enforcement strategy, to bear down on the illegal jobs that encourage illegal journeys. We have made much progress in fostering a more constructive and realistic view of the substantial benefits that the country enjoys from our participation in the globalised world economy and the consequent flow of human capital across our borders. However, it is crucial that irregular migration is prevented and that we contain positive migration within a firm, enforced framework that removes the economic incentive to act unlawfully and provides a cost-effective means of sanctioning those who break the rules.

We need a system that reflects a fair and balanced partnership between the Government and employers in regulating the participation of migrants in the labour market, in which the rights and responsibilities are cleared. We must also ensure that we take appropriate steps to protect vulnerable workers from dangerous and exploitative working conditions. We need to take action overseas, at our borders and within our country to ensure that the system as a whole has integrity. There are many strands to our comprehensive strategy for tackling illegal jobs and illegal journeys. These include tougher checks overseas, strengthening our border controls, mandatory biometric identity cards, a licensing system for employers under the new points-based scheme, an increase in enforcement action, an enhanced checking service for employers, closer joint working with other workplace enforcement agencies and a new system of civil penalties for employers.

The provisions in the Immigration, Asylum and Nationality Act 2006 replace the existing offence of employing illegal migrant workers in Section 8 of the Asylum and Immigration Act 1996 with a new system of civil penalties where there are less than diligent personnel practices and a tough new criminal offence for employers who knowingly give work to illegal migrants. It is important to note that the repeal of Section 8 and the introduction of these new measures on 29 February 2008 will not provide an amnesty in respect of offences committed by employers before this date. Employers found to have employed illegal migrant workers between 27 January 1997 and 28 February 2008 will continue to be liable for prosecution under the 1996 Act. Therefore, if we encounter an employer with illegal workers after 29 February who started work before that date, the employer will face the prospect of prosecution under the Section 8 offence.

The new arrangements are not dissimilar to the current legislation in some respects. We will, as now, be encouraging employers to carry out some relatively straightforward document checks on all their workers before employment commences to avoid unlawful discrimination. Clearly, it is vital to ensure that employers are aware of the changes to the legislation and how they will impact on their personnel practices. The Border and Immigration Agency’s website contains detailed information on the changes that will be introduced next year. Comprehensive guidance on the new civil penalties scheme will also be available to employers. In addition, an extensive public communications campaign, which commenced last month and will continue into the new year, alerts employers to their obligations. That will be backed up with direct mail communication with employers in the relevant sectors.

We expect employers not to be forgery experts but simply to spot documents that have obviously been tampered with or do not relate to the person using them. Employers will face a new duty to carry out light-touch annual follow-up checks on workers who have temporary immigration status. Employers who carry out these checks properly will establish an excuse against a penalty, unless they know that the worker does not have permission to work.

In line with the Hampton and Macrory reports on regulatory enforcement, in the majority of cases employers who break the law will face an administrative penalty, as opposed to the current situation where they face costly criminal proceedings and the possibility of receiving a criminal record. Penalties will be on a sliding scale, which will escalate for repeat offending. The penalty system will be subject to stringent safeguards. An aggrieved employer will be able to make an objection to the Border and Immigration Agency and/or appeal to the courts against the service or level of a penalty. Employers who are found knowingly or deliberately to be employing illegal migrant workers will face prosecution. The £10,000 maximum level of penalty that we propose is the right maximum for those employers who conduct no document checks at recruitment and have been found repeatedly to employ illegal migrant workers.

It is important to remember that these penalties will be issued case by case, with reference to a sliding scale that allows for the level of penalty to be set according to a range of factors, including the severity of the offence and the ability of the employer to pay. For instance, at the opposite end of the scale, first-time offenders who carry out partial document checks, report their suspicions and co-operate with the Border and Immigration Agency may receive a written warning instead of a financial penalty. Only in the most severe cases of repeatedly slipshod recruitment and employment practice will the £10,000 maximum be considered.

When viewed in the context of financial sanctions for employers of illegal workers in other European countries, a £10,000-per-worker maximum sits in the mid-range. The figure of £10,000 also reflects the estimated unit cost of enforcing the return of an immigration offender to their country of origin. The new sliding-scale penalty system, with a £10,000 maximum penalty, reflects a proportionate approach to non-compliance but provides a sufficient deterrent effect so that employers will not want to risk their profits and reputation by using slipshod personnel practices and employing illegal migrant workers.

I trust that noble Lords will join me in supporting these measures, which will help to combat illegal migration and the exploitation of vulnerable workers and demonstrate to the public and our international partners that we are serious about tackling one of the root causes of illegal immigration to this country. I therefore invite your Lordships to approve this order. I beg to move.

Moved, That the draft order laid before the House on 22 November be approved. 4th Report from the Statutory Instruments Committee.—(Lord West of Spithead.)

My Lords, I thank the Minister for his explanation of the order, which was a great deal longer and more coherent than the Explanatory Notes. The order follows seamlessly on from the Statement that we heard earlier today, because it demonstrates the importance of employers being certain that the people whom they employ, particularly migrant workers, are legally employed and not in breach of employment conditions.

The Minister may have referred to some of the points that I shall raise, but perhaps I may worry myself at them again. Will he make it clear how the decision on where the penalty lies will be made? The upper limit is £10,000. I understand that it will be £10,000 in each case. Some cases will be more serious than others and some employers may have a number of cases against them. So that one can get an idea of the measure of the offences, will the Minister say where a written warning will be appropriate, at the very lowest level, and where the £10,000 fine might kick in? Who will make the decision about how much is charged? Will it be the Border and Immigration Agency? It can hardly be the Minister, who will have enough to do without worrying about that. If it is to be the Border and Immigration Agency, it will be helpful to have that on record.

If a number of breaches are found at any one time, will there be a different level of penalty? If there was one illegal employee, I presume that it would be one offence and one charge. If there were 16, would that then be deemed to be a £10,000 fine or thereabouts multiplied by 16, or would there be some way of ameliorating that for employers? If they have made one mistake, will they be deemed to have made 16 or so at the same time?

Section 15(3) of the Immigration, Asylum and Nationality Act, states that,

“an employer is excused from paying a penalty if he shows that he complied with any prescribed requirements”.

The requirements are more or less listed in subsection (7), but they are not completely identified. Have these requirements already been issued by order, or are they still to come? If the latter, will they be issued in time for consideration by employers before the order comes into force next February? This may be what the Minister was referring to when he said that it is on the website, but it would be helpful to know that.

Finally, the Explanatory Notes to this order say in paragraph 7.1:

“The system of civil penalties is designed to encourage employers to comply with their legal obligations, without criminalising those who slip up in operating their recruitment and employment practices”.

Will the Minister say where you slip from the civil to the criminal on this basis, or whether, as I believe, these are all civil proceedings and, therefore, you could not be criminalised under them? Apart from those points, we very much support these provisions, pending the few explanations for which I have asked.

My Lords, we agree that steps have to be taken to bear down on the employment of illegal migrants and we have no objection to this order, including the maximum penalty for an employer who repeatedly and deliberately ignores the obligation to carry out specified document checks to ensure that he only takes on, or continues to employ, persons with leave to work in the United Kingdom. The noble Baroness may wish to refer to the draft code of practice on prevention of illegal working, which contains an explanation of how the penalties will be calculated in certain illustrative cases. Whether this document is sufficiently widely known I beg leave to doubt, because if she has not seen it, it can reasonably be assumed that many employers will not have seen it either.

I was pleased to hear what the Minister said about it being vital that employers were fully aware of the changes, because I think that has yet to be confirmed. I also agree with him that this order is without prejudice to the need to apply criminal sanctions against employers who use trafficked migrants, or who deliberately exploit persons whom they know are not permitted to work by, for example, paying below the minimum wage or exposing them to unsafe or unhealthy conditions in the workplace.

It seems a very long time since we discussed these matters under what was then Clause 15 of the Immigration, Asylum and Nationality Bill. When we talked about the civil penalty clause in Grand Committee, our main concern, as I remember, was that employers should know what they had to do to check that a person they employed was allowed to work in the UK, and that undertaking the particular checks required would not impose undue administrative burdens on them. The explanatory memorandum says that they have to carry out specified document checks at the point of recruitment, and repeat the checks once every 12 months for anyone who has limited leave to enter or remain in the UK. It is fair to assume that most employers who routinely hire foreign workers are unlikely to have any difficulty with the prescribed checks, because they are not significantly different from those already laid down in previous legislation.

It is also claimed by the Government that, once the biometric immigration document is rolled out, the process will be simpler because it will mean that fewer documents have to be verified and copied. For the mean time, as I understand it—the Minister will doubtless confirm this—the list of documents that need to be checked is unchanged and was given in the April 2004 guidance, which is not particularly easy to find on the BIA website. I looked for it and was unable to locate it, so I rang the employers’ helpline and waited six minutes for an answer. They were getting a very large number of calls about this order.

In response to the consultation, the BIA said it was committed to improving web-based support, taking employers through the procedures they have to adopt in order to ensure compliance with their obligations and therefore their immunity from the civil penalty. Analysis of the calls that are received on the employers’ helpline might help the designers of the site to identify, from the questions that are most frequently asked, which bits of the employers’ section of the BIA site should be given greater prominence.

I had an e-mail yesterday from Ms Christine Lee of the Chinese Community Association, whose name will no doubt be familiar to the noble Lord because we had a lot to do with her and with the Chinese community during proceedings on the legislation. I am sorry to say that she thinks there are some difficulties for that community because they would not necessarily be able to identify false papers from genuine ones. I would like the Minister to say something about cases where an employer who is not a skilled immigration lawyer looks at a document, thinks it is genuine and takes someone on, only to discover—perhaps too late, when the premises are raided by the police, as Chinese restaurants frequently have been in the recent past—that they have mistakenly taken on someone who is not qualified.

What plans does the BIA have to produce new guidance covering the simplified document checks when the bids are rolled out, and for ensuring that employers are fully aware of those procedures in advance of the rollout?

My Lords, although there are a small number of speakers here today, they have made some useful points and I thank them. I thank the noble Baroness for her kind words about my initial Statement. It is clear that your Lordships agree that this is a sensible way forward. The Statement about the SIA by my right honourable friend the Home Secretary, which I repeated earlier today, links in to the order. Part of the problem is that it has not been as easy to prosecute people under the old Act as it should be from now on. The new order is much more practical and useful.

The framework for assessing the level of the civil penalty relates to the number of times the employer has been checked, the number of times that there has been an incident with them, whether they have done any partial checks or no checks at all, or whether they believe they have done full checks. I have a useful guidance sheet, and it might help if I sent a copy to both noble Lords who raised the issue. It shows exactly how we will go about that.

We are still coming to a conclusion about the composition of the board that will make these assessments and exactly where it will sit. It will be a Home Office/BIA body. That work is ongoing and will be completed before the order comes into force.

The noble Baroness mentioned Section 15(3) with regard to the list of documents, requirements and checks that had to be done. We have produced a negative order, which was laid at exactly the same time. That lays out clearly the statutory excuse, the objections and everything that needs to be done.

Under the 1996 Act there was no distinction between less than diligent employers and deliberately criminal employers who employed illegal migrant workers. That is why there were so few prosecutions. Replacing the existing provisions with these new measures will give us a lot more force and enable us to do something where it really needs to be done.

The list of documents has been revised, but I have to check whether they are different from April 2004. I will write to the noble Lord, Lord Avebury, on that point to see whether they are different. I know that there has been a revision, but I am not sure whether they changed. I will have to get back to him. On the point of the helpline and the six-minute wait, I think that that relates to the other events that have been going on in the security industry area. The points that he made on guidance about the BIA site are of value and we will see whether it can be made slicker and any better. I thank him very much for those.

As regards the concerns from the Chinese community, as I said in my opening remarks we do not expect employers to be forgery experts, but just to see whether something has been tampered with or does not relate to the person involved; that should be clear. If they have tried to do that, if they have a concern and then something happens, the worst that would ever happen would be a written note saying that they have to be a little more careful. They are not the sort of people we are looking for. The people at whom we are looking for the big fines are people who clearly know exactly what they are doing employing these people and they need to be penalised for it.

I turn to traffickers. It remains that there is a new criminal offence for employers who knowingly employ illegal migrant workers. That carries a two-year prison sentence or an unlimited fine. That is correct, because we have seen some awful cases. It was important that that provision was made. Overall, the proportionate sliding scale of the civil penalty system—I will be writing about that—with the £10,000 maximum penalty is a key part of our immigration enforcement strategy to bear down on the illegal jobs that encourage illegal journeys. I commend the order to the House.

My Lords, can I say a bit about civil proceedings and criminalising people, because it is important? There are two separate issues but not within the order. The order relates to civil proceedings against employers. That would not criminalise them; it would penalise them. The Minister is referring to another process whereby there could be criminal proceedings for a criminal offence. In the Explanatory Notes those two become muddled together. The Explanatory Notes are probably only for us, but we need to be clear that the order relates only to civil proceedings that will penalise people.

My Lords, the noble Baroness makes a fair point. I have not read the explanation, which I should have done. If that is not clear it needs to be made clear and explicit. This is an administrative matter, which the sliding scale will make more practical. The other matter is still a criminal offence, so it is two separate issues.

On Question, Motion agreed to.