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Baroness Scotland

Baroness Scotland

Baroness-ScotlandThe media coverage on this story has been interesting. The Telegraph is running a short story that is actually quite sympathetic to employers who break the law. Many seem to be revelling in the fact that Baroness Scotland helped to pass the law she may or may not have broken.

The history is that criminal sanctions against employers who employ illegal workers were introduced in 1996. The law was complex as it required employers to take and retain copies of certain documents or combinations of documents. If an employee turned out to be illegal but the documents had been copied and retained, the employer would be in the clear. The idea was that employers could not be expected to work out whether a given person did or did not have permission to work in the UK or whether documents were forged but could be expected to copy and keep specified documents.

There were very few prosecutions indeed. The law was reformed and made even more complicated in 2002 and again in 2004. There were still very few, if any, prosecutions.

Eventually, in 2006, the Home Office instead went for the civil penalty scheme we have today. The rules are similar, except it is no longer a criminal matter. There is simply a fine if UKBA find out that an employer has employed an illegal worker and has not copied and kept the right documents. There is a criminal offence of knowingly employing an illegal worker but I have not heard of any prosecutions at all.

In addition, UKBA now publish lists of employers who have been fined as some sort of alleged ‘naming and shaming’ exercise.

The entire thing has an air of unreality about it. It is all very well expecting large employers with human resources departments and training budgets to comply with these sorts of rules. It is entirely ridiculous to expect the same of chip shops or those wanting a cleaner. It would be daft if Baroness Scotland lost her job over such an easy mistake to have made – but that is exactly the scheme that UKBA have introduced and hundreds of others have been fined for exactly the same mistake. Baroness Scotland probably did not herself fully understand the law she piloted through the Lords, and she now appears to have been hoist by her own petard.

Free Movement

The Free Movement blog was founded in 2007 by Colin Yeo, a barrister at Garden Court Chambers specialising in immigration law. The blog provides updates and commentary on immigration and asylum law by a variety of authors.

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