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

Introduction

Section 8 of the Asylum and Immigration Act 1996 (the Act) requires all employers in the United Kingdom to make basic document checks on every person they intend to employ. The purpose of making these checks is for employers to ensure that they are not breaking the law by inadvertently employing illegal workers.

On 1 May 2004, the Government introduced changes to the types of document which employers need to check under section 8 of the Act. These changes were made for three key reasons:

To make it harder for people who do not have permission to work in the United Kingdom to obtain work by using forged or false documents;
To make it easier for employers to ensure that they employ people who are legally permitted to work in the United Kingdom; and
To strengthen the Government's controls on tackling illegal working by making it easier for the United Kingdom Immigration Service to take action against employers who deliberately use illegal labour.

Legislation

Section 8 of the Act sets out the law on the prevention of illegal working. It makes it a criminal offence for an employer to employ anyone aged 16 or over who has no right to work in the United Kingdom. Any employer found breaching the legislation may be convicted of a criminal offence and fined up to £5,000 for each employee working illegally. There are proposals to increase this fine by up to £20,000 per employee.

The specified list

On 1 May 2004, changes came about to the type of documents employers need to check in order to avoid falling foul of the Act. The revised legislation specifies two lists of documents:

List 1 comprises secure documents - documents which are considered secure enough to stand alone and of which the employer need only check one original. The documents required are generally a passport or other travel document showing the right of the holder to stay and work in the UK, or an Application Registration Card (in the case of an asylum seeker).
List 2 comprises a number of documents considered less secure and of which the employer must check two originals. Examples include evidence of a potential employee's National Insurance number and birth certificate.

For every new potential employee employed from 1 May 2004 the employer should ask the potential employee for:

one of the original documents included on list 1; or
two of the original documents in the combinations given in list 2.

To be certain of falling within the section 8 defence, employers must be aware of the documents on each list to ensure that they request, and take copies of, the correct documents. The complete lists are contained in the Immigration (Restrictions on Employment) Order 2004 (No. 755) and can be found on the Home Office's dedicated immigration website.

Breaches of section 8 of the Asylum and Immigration Act 1996

Nowadays - in which immigration issues are topical news - employers who find they are in breach of the 1996 act, can expect to be dealt with more firmly by the government.

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 UK. Even though the Home Office does not engage in what’s known as "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 is brought to their attention.

Employers who are brought to the Home Office's attention for being seen for breaching the act are in real 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.