Submission date: 7 August 2007

In May 2007, the Border and Immigration Agency (the "BIA", which is part of the Home Office) issued a consultation paper dealing with the proposed implementation of new powers (contained in the Immigration and Asylum and Nationality Act) to prevent illegal migrant working in the UK, by those who are nationals of countries outside the European Economic Area – the ‘EEA’.

A new "Australian style" points based system of sponsorship is to be introduced, which will transfer more responsibility to employers, who are considered to be those who stand to benefit from any prospective migration.

In future all migrants (save for those who are "highly skilled") will need to have a Certificate of Sponsorship from a sponsor on the Government’s sponsors register. Sponsors will be rated in accordance with good practice criteria and how they carry out their obligations. The BIA will be clamping down on transgressing employers through the introduction of a new "civil penalties" regime, and by the introduction of a new criminal offence for employers found to be knowingly employing illegal migrant workers.

The Government has published a proposed Code of Practice setting out the factors to be taken into account when determining the level of any civil penalty, and has also published a draft Code of Practice for employers seeking to avoid unlawful discrimination in their recruitment practices, whilst they are seeking to prevent illegal working pursuant to the new regime.

The members of the ELA working party that produced this response were:

Richard Fox (Chair), Kingsley Napley, London

Sally Adams, Kingsley Napley, London

Laurie Anstis, Boyes Turner, Reading

Simon Brian, Walker Morris, Leeds

Julian Parry, Lewis Silkin, Oxford

Alexandra Porter, Thomas More Chambers

Louise Shaw, Kingsley Napley, London.

In summary, our views on the questions raised in the Consultation Paper are as follows:

1. We doubted the initial checks would lead to significant increases in costs to recruiting employers, although their "repeat checks", for those whose entitlement to work was time limited, may do.

2. The ongoing obligation upon employers to carry out repeat checks might lead to some employers, as a matter of policy, deciding not to employ individuals who have time limited rights to work in the UK.

3. Whilst the current requirements may be well known to employers as a matter of practice, many may not fully understand the rationale behind the checks they are having to make.

4. The current Section 8 guidance is reasonably helpful, particularly in relation to the list of documents employers are being required to check. That having been said, we were unsure whether employers were in fact looking carefully and thoroughly at this guidance, and they may also be unaware of the Government’s websites in that respect.

5. The codes the Government proposed to produce may be over-complicated, and too lengthy. It may be better to concentrate on the most important points.

6. The process may be open to abuse by companies caught initially, who subsequently change their business name, so that if caught again they might seek to claim it was a "first offence".

7. The proposed new Civil Penalties Code did not distinguish between varying percentages of the employers workforce – 4 illegal workers amongst an entire workforce of 400, for example, was different to 4 illegal workers amongst a workforce of 4.

8. Employers who were uncertain as to the legitimacy of various types of passport stamps etc, might not only make use of a telephone helpline, but could also be provided with a fax helpline and/or an email/scanning option.

9. The difference between checking the documents by contacting the helpline, and actually reporting a concern, needed to be clarified. If telephone advice was sought, a system could be introduced for the provision of a reference for the purposes of the call, which reference could be quoted subsequently where necessary.

10. The Government could look to provide a "reminder" service in respect of those employees whose visas are time limited. The Government might seek to recoup the costs involved from the immigration fee. The additional costs might otherwise serve to dis-incentivise prospective employers from employing those with temporary leave to remain.

11. In terms of penalty, consideration might be given to the creation of an "intermediary" offence, of "recklessly" employing a worker illegally.

12. The Government might clarify how and in what circumstanrecords were held at a different location?

13. It seemed unlikely that the current proposals were going to have a significant effect upon "trafficking" for forced labour. ces, the proposed "on the spot" fines were to be levied. What would happen, for example, where an inspection was made at a multi-national employer’s premises, whose employee Such employers were unlikely to be deterred by the current proposals (and in any event this was already an area regulated by the Government in certain industries, such as agriculture and fishing).

14. The position on a TUPE transfer should be considered, where, for example a transferee carried out extensive due diligence but received inadequate information from the transferor. This may apply when continued checks were not carried out on those with time limited visas, and civil penalties were imposed as a result.

15. The legislation might serve to encourage employers to take on agency staff or consultants and in such circumstances the regulations might be made to apply specifically to "workers", and not just "employees".