3 March 2003
The Government has taken an increasingly hard attitude towards those who employ individuals without the requisite immigration permission. Historically, this has not always been the case. The Conservatives first introduced the idea of employer sanctions for illegal working in the mid-1990s, and the Labour Party were vehemently opposed to it. Section 8 of the Asylum and Immigration Act 1996 made it an offence to employ a person subject to immigration control who did not have permission to undertake the work. Labour said that when it came to power, it would repeal the legislation. It did not do this and, although initially the provisions were not enforced, the Government is now eager to demonstrate that it is tough in this area.
The recent Nationality, Immigration and Asylum Act 2002 strengthens the Government's hand against those who employ individuals without the requisite immigration permission. There are new powers under the act for immigration officers to enter and search employers' premises, in particular personnel records, if there is reasonable suspicion that an immigration offence has been committed, as well as new powers for the sharing of data between agencies. The Government has also established an immigration "hotline" for "interested parties" to report immigration misdemeanours. It is understood that the Home Office believes this has proved to be very successful in detecting firms that have been employing individuals illegally.
It is essential that, as part of the recruitment process, law firms check whether individuals have the requisite immigration permission to work in the firm, and if they do not, to obtain that permission. In order to have a defence to a charge of illegal working, it is necessary to check one of a number of prescribed documents, the most straightforward being a person's passport. Obviously, to ensure that there can be no charge of race discrimination, the same document should be requested from all applicants. The new act will limit the number of documents an employer can look at to secure a defence. This seems sensible, as many of the current prescribed documents offer no clue to a person's immigration status. It is essential to keep copies of the documents.
I know of law firms that have employed lawyers on the basis that they are married to UK citizens, and yet the individuals in question do not have that immigration status. I have also seen several lawyers working under an incorrect immigration category. In addition, there appears to be an amazingly relaxed view of what an overseas lawyer visiting the UK office is allowed to do without a work permit.
One of the aims of the current Government policy on immigration is to provide new routes whereby individuals can work in the UK - for example, the Highly Skilled Migrant Programme (which has recently been modified) and the soon-to-be-announced low-skilled work permits, particularly in the hotel and catering and agricultural sectors. In addition, the working holiday maker scheme is about to be relaxed. However, at the same time, the Government is clamping down on illegal working. When the Government makes a high-profile raid, it would obviously be best if this does not happen at your firm.
It is also a good opportunity to consider your global immigration practice, and in particular when sending lawyers to the US. In December the US Embassy introduced a number of changes to visa processing, in particular compulsory interviews for visa applicants. Eligible lawyers who are nationals of one of 28 listed countries and are genuinely visiting the US on business can still use the Visa Waiver Programme, although the long-term future of this programme is certainly in question. Camerons' US practice has dealt with a number of cases where businesspeople, including lawyers, have attempted to enter the US in situations where they are not truly visitors. Rest assured that in the current climate this is not a good policy. All non-US lawyers travelling to the US on business should ensure that they are either eligible to travel under the Visa Waiver Programme or obtain the appropriate visa before departing.
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