Section 15 of
the Immigration, Asylum and Nationality Act 2006 prescribes civil penalties
which may be imposed by the Home office on employers found to have been employing
illegal immigrants, i.e. people who have no leave to remain in the UK, whose
leave has expired or who have leave but whose leave is subject to a condition
precluding them from accepting employment.
Detailed provisions relating to objections, appeals, enforcement and
code of practice to be followed in determining the amount of penalties are
contained in sections 16-19. At present
the maximum penalty is £10,000 per illegal immigrant found to have been so employed.
Section
21 of the same Act makes it an offence for an employer to employ an illegal
immigrant, using exactly the same words to define the offence as are used in
section 15 to describe the conduct which gives rise to liability for a civil
penalty. Prosecutions for the offence
may be brought in England and Wales in either the Crown Courts (“on conviction
on indictment”) or Magistrates’ Courts (“on summary conviction”) or the
equivalent courts in Scotland or
Northern Ireland, depending on the seriousness of the offence. A person convicted of the offence on
indictment may be sentenced to imprisonment for a maximum of two years, an
unlimited fine or both. A person
summarily convicted may be sentenced to imprisonment to a maximum of 12 months
in England and Wales or 6 months in Scotland or Northern Ireland. I do not know the reasons for the differences
in penalties. He may in the alternative
be sentenced to a fine not exceeding the statutory maximum (currently £5000) or
to both a fine and imprisonment.
Civil
penalties are obviously the preferred sanction in less serious cases as they
avoid the costs, troubles and delays involved in prosecutions, though there
have been criticisms of laxity in actually collecting penalties which have been
imposed. There is the added advantage that such penalties in less serious cases
can be up to £10,000 per illegal immigrant employed as against a maximum fine
of £5000 on summary conviction. However,
a recent case in the Glasgow Sheriff Court may encourage the Home Office to
prosecute under section 21 more often in appropriate cases. A woman who owned and ran several Chinese
restaurants was fined £6000 in June 2011 for two offences of employing illegal
immigrants. After she was convicted the
Scottish Crown Office, Serious Organised Crime Agency and Home Office jointly
initiated confiscation proceedings under the Proceeds of Crime Act 2002. This is a statute running to 462 sections and
12 schedules applying to all parts of the UK, with which I am wholly unfamiliar. However, the purpose of it is to make it
possible for a court after convicting a criminal to investigate the extent to
which his lifestyle has made it possible to amass wealth in money or goods and
if appropriate to make a confiscation order.
Such a criminal may now be required to account for unexplained income
for a full six years before arrest. In this case the results of surveillance
and detailed investigation of the woman’s businesses led to the making of a
confiscation order for £722,956 of cash and jewellery.
So
far as I am aware, this is the first time that conviction for an immigration
offence has led to a confiscation order.
Discoveries of illegal immigrants working in Indian or Chinese
restaurants are frequent and mostly result in the imposition of civil
penalties. Such penalties cannot lead to
confiscation orders under the Proceeds of Crime Act as they do not constitute
conviction for a criminal offence.
However, the case may encourage the Home Office to resort more readily
to prosecutions in appropriate instances and may deter restaurant owners from
employing illegal immigrants or committing other immigration offences.
Harry
Mitchell, QC
Migration
Watch UK