Employers liabilities under section 8 of the asylum and immigration act 1996

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Introduction

Section 8 of the Asylum and Immigration Act 1996 imposes an onus on employers to ensure that all employees are not in breach of the Immigration Rules. It also imposes sanctions on employees conform to the Immigration Rules - a £5000 fine for each employee in breach.

United Kingdom employers should not be misled by the title of the Asylum and Immigration Act. Its purpose is not solely to control political asylum applicants but it is aimed at all immigrants into the United Kingdom. Previous legislation had proved to be inadequate. In an attempt to counteract the growing use of illegal workers and to provide effective sanctions,s.8 of the 1996 Act introduced a specific offence of employing person who is not permitted to work in the United Kingdom. For each employee, the employer is liable for a fine of £5000. In the event of the employer being a company, the person responsible for overall management may face persecution.

Elements of the Offence

Section 8 (1) is quite clear that it is an offence for an employer to employ an employee when that employee is over 16 years old and that employee is subject to immigration control in the United Kingdom, and;

(a) the employee has not been granted leave to enter or remain in the United Kingdom, or

(b) the employee’s leave is not valid and subsisting, or is subject to a condition precluding then from taking up the employment and (in either case) the employee does not satisfy such conditions as may be specified in an order made by the Secretary of State.

Statutory defence open to the employer

In order to establish whether or not an employer has a defence to an offence under s. 8 (1), the employer should refer to s 8 (2) of the Act.

Employers should note that the burden of proof falls upon them to establish that defence exists - it is not, as is usual, for the prosecution to establish that an offence has occurred. In effect, employers have become Immigration Officers, as in order to establish a defence, they have to show that before employment commenced a document was shown to the employer which:

  1. (1) appeared to the employer to relate to the employee;
  2. (2) was one of those [set out in the] specified list [made] by the Secretary of State to the Home Office;
  3. (3) appeared to be an original.

The specified list

That specified list is as follows and is detailed in the Immigration (Restrictions on Employment) Order 1996 SI 1996/3225:

Breaches of section 8 of the Asylum and Immigration Act 1996

In the current climate - in which immigration issues are topical news - employers who are in breach of the 1996 may be the next target for politicians who want to be seen as being tough on illegal immigration.

Any breaches of the Immigration Rules are dealt with by the Home Office. The Home Office enforcement teams are each responsible for a particular catchments area in the United Kingdom. Even though the Home Office does not engage in “fishing trips” by making surprise random raids on employers in order to inspect the immigration status of employees, they are duty bound to investigate any breaches of the Immigration Rules that come to their attention.

Employers who are brought to the Home Office’s attention as being in breach are in real and unnecessary risk of investigation by the Home Office. Any adverse findings will lead not only to the possibility of prosecution under the 1996 Act but also to closer scrutiny of any further application for work permits and any further dealings with the Home Office