Employer collusion and immigration raids

Transcription

1 Employer collusion and immigration raids Declan O Callaghan Landmark Chambers This is a note of a talk presented by the author at Landmark Chambers seminar The Immigration Act 2016: One Year On held on 13 July Definition of collusion: Secret or illegal cooperation or conspiracy in order to deceive others Introduction 1. A significant, though underreported, development in modern Britain is the transfer of immigration enforcement from the State to public or private entities in the form of landlords, educational institutions and business. At its heart, the transfer is consequent to Home Office staffing pressures and its resulting inability to adequately monitor the ebb and flow of migration into this country. 2. This development is a further erosion of the position of migrants who are not lawfully present in this country. Members of the public and businesses are now part of the State s enforcement regime and they will be punished if they do not act accordingly. Historical development 3. By the time of Lord Coke s judgment in Calvin s case 1 aliens were distinguished not only from British citizens but also in terms of alien enemies and alien friends. The former enjoyed no civil rights or privileges unless they were present under the protection and permission of the Crown. Alien friends were treated as if they were British subjects. 4. It is to be noted that by way of a directive issued in 1852, the Foreign Secretary confirmed that under domestic law all foreigners enjoyed the unrestricted right of entrance and residence in this country The inability to remove or deport a foreign national by executive act came to an end with the Aliens Act 1905 and over time more and more restrictions were imposed as to entry, residence and employment as well as the introduction of and then restriction upon appeals. 1 (1608) 7 Co. Rep. 1a 2 See Macdonald s Immigration Law and Practice (9 th edition) (2014), paragraph 1.4 1

2 6. By 2014, the Home Office was willing to announce with the enactment of the Immigration Act 2014 that it would 'ensure our immigration system is fairer to British citizens and legitimate migrants,' while being 'tougher on those with no right to be here.' To act tough (and at times to demonise) became an official mantra. The then Home Secretary, and now - for the present - Prime Minister, identified that the purposes of the 2014 Act was to create a hostile environment for migrants in the United Kingdom 3 and she informed the audience of BBC Radio 4 s Today programme: Most people will say it can't be fair for people who have no right to be here in the UK to continue to exist as everybody else does with bank accounts, with driving licences and with access to rented accommodation. We are going to be changing that because we don't think that is fair Throughout modern times, the Executive has enjoyed the power to remove or deport foreign nationals but despite ever increasing resources and the introduction of tougher powers, it was considered by many to have significantly failed in its role. In response to both resolute strategic inefficiency and continuing cuts to the Home Office budget, 5 with its attendant impact upon the UK Border Force, a growing role has been identified for businesses, universities and landlords to join the Home Office in ensuring migrant compliance with immigration law. 8. The consequence of the outsourcing of some of the burdens of migration is that the Home Office is divesting elements of its oversight of immigration control to non-state agencies, who in-turn are required to accept responsibility for monitoring migrants and ensuring compliance. The imposition of a further level of administration, with attendant civil and criminal penalties, is challenging for many who have limited or no previous experience of immigration law and documents. The Immigration Act The Act was a partial recognition that previous efforts to address illegal employment were inadequate. The regime was tinkered with, rather than replaced, and efforts were made to close a perceived loophole and increase the use of criminal prosecutions ibid. 3 5 There has been a cut of 9% in Home Office staff numbers between 2010 and 2016, with a reduction of 16% in its day-to-day spending budget during the same period. The expectation is that there will be a further 5% cut in spending by

3 10. Since 1996, several Governments have identified illegal employment as one of the principle pull factors for illegal immigration, leading to the exploitation of workers, unfair competition and revenue evasion. The initial regime implemented by section 8 Asylum and Immigration Act 1996 criminalised the employment of illegal workers. The high standard of proof required for a criminal conviction lead to limited action against illegal working and resulted in the introduction of a civil penalty scheme by way of section 15 Immigration, Asylum and Nationality Act 2006 which prohibits the employment of adults subject to immigration control and who do not have leave to enter or remain in this country, or who are subject to a condition preventing them from undertaking employment. The prohibition is supported through both a civil penalty regime and a criminal sanction for employers of illegal workers. Common examples of illegal working 11. Beyond the textbook example of an unscrupulous employer knowingly employing an illegal worker so as to enjoy the benefits of not paying the national minimum wage, having no contractual duties and there being no minimum hours of work to be provided, common examples of illegal working are: Employing a person who enjoys leave to enter as a visitor; Employing a student and permitting them to work in breach of the terms of their visa, for example by their working in excess of their permitted number of weekly hours or by employing them in a permanent position; Employing a person in possession of a working visa in a role that is not permitted under the terms of the visa, for example employing a Tier 1 (Entrepreneur) migrant in a non-entrepreneurial role. Civil penalty 12. The civil penalty scheme came into force in February 2008 and was soon established as the principle means of enforcement as it proved to be a simpler, more cost effective means of targeting illegal employment. 13. Under section 15 Immigration Asylum and Nationality Act 2006 a company may be liable for a civil penalty if it employs an individual who does not have the right to work. The penalty amounts to between 15,000 to 20,000 per worker depending upon whether it is a repeat offence. 3

4 14. In the last 6 months of 2015 alone, the Home Office issued over 1,200 civil penalty notices with accompanying fines in excess of 21 million The penalty is issued by way of notice and therefore does not automatically lead to court proceedings. An employer may appeal and this is initially considered by a county court. 16. Section 17 of the 2006 Act contains provisions as to an appeal against a civil penalty. It provides that: (1) An employer to whom a penalty notice is given my appeal to the court on the ground that a. he is not liable to the imposition of a penalty, b. he is excused payment by virtue of section 15(3) or c. the amount of the penalty is too high. (2) The court may (a) allow the appeal and cancel the penalty, (b) allow the appeal and reduce the penalty, or (c) dismiss the appeal. 17. Section 17(1) effectively limits the grounds of appeal and places the burden on an employer to demonstrate to the court that it is not liable and that it complied with the statutory requirements or that the penalty is too high. 18. An appeal concerning the level of penalty must have regard to the relevant code made under section 19, namely the Code of Practice, Prevention of Illegal Working, Civil Penalties for Employers, which details how penalties are to be determined. 19. Section 15(3) of the 2006 Act establishes a statutory excuse whereby an employer is excused from paying the penalty where it can establish that it complied with the statutory right to work checks in order to ensure that its workers enjoy appropriate working rights. 20. The document(s) provided to an employer will usually be the worker's passport and a relevant visa stamp/ vignette and/or Biometric Residence Permit if the migrant worker is not a national of the European Economic Area or a Swiss national. The Home Office has produced two lists of documents that can be 6 The work of the Immigration Directorates (Q1 2016) Parliament, accessed at 4

5 used to evidence the right to work for either the entire period of employment or a specified period of time. 21. The employer is required to take full copies of documentation identified within accompanying guidance and to record the date the check was undertaken. The employer is to note when leave to enter or remain expires. 22. As observed by the Scottish case of Qudos Leisure Limited v. Advocate General for Scotland 2010 SLT (Sheriff Court) 13: Record keeping lies at the heart of the system established by the 2006 Act and it is essential that employers understand and comply with this. 23. Despite the apparent simplicity of the appeal provisions, it necessary to have regard to other sections of the Act, and other subsidiary legislation, in order to try and understand how these appeal provisions are designed to operate. 24. The Court of Appeal has recently confirmed that it enjoys jurisdiction to hear appeals against county court decisions that are concerned with the imposition of a civil penalty under section 15 of the 2006 Act: Akbar v. Secretary of State for the Home Department [2017] EWCA Civ 16; [2017] 1 WLR Criminal offence - employer 25. The government identified a loophole in the regime. If an employer was not knowingly employing illegal workers, by deliberately failing to check as to whether an employee was lawfully permitted to work, they did not fall foul of the criminal sanction. Only a civil liability arose and as civil penalties could only be imposed upon businesses and not individuals, those employers committed to regular employment of unlawful labour could simply create new businesses. 26. Section 21 of the 2006 Act was therefore amended and expanded by section 35 of the 2016 Act to establish that an employer will commit an offence where they employ a person knowingly, or where they have reasonable cause to believe, that the worker is disqualified from working by reason of their immigration status. The mens rea element of the offence was therefore broadened beyond actual knowledge of illegal working to one where the offence is committed if an employer has reasonable cause to believe that a worker is not lawfully permitted to work. 27. The penalty for committing such an offence is either imprisonment for a term not exceeding five years, or a fine, or both. Criminal offence - worker 5

6 28. By inserting section 24B into the Immigration Act 1971, section 34 of the 2016 Act creates a new criminal offence of illegal working, namely of working while knowing or having reasonable cause to believe that a person is disqualified from working because of their immigration status. 29. This provision covers both those migrants who are found to be working in breach of their conditions of leave as well as those working unlawfully with no leave to enter or remain. 30. The offence is summary only in nature but subject to sentencing powers of 51 weeks. 31. The rationale provided by the Home Office for the creation of this offence was that it would permit the seizing of earnings through confiscation orders made under the Proceeds of Crime Act 2002 where seized cash exceeds 1,000. Whilst it was possible to order such seizure from persons working in breach of their conditions, it had not been possible before the coming into force of the Act to do so with regard to persons who enjoyed no leave at all. Additional provisions 32. The 2016 Act created the power to appoint a new Director of Labour Market Enforcement to oversee labour market regulators and to provide a coordinated strategy for enforcement and compliance: sections 1 and It provides the Home Office with the power to impose compliance sanctions and close businesses that continue to employ illegal workers: sections 14 to It increased powers for immigration officers to enter business premises to search for documents and to seize and retain evidence in relation to an offence: sections 47 to 50. Dominance and Collusion 35. The Home Office is understood to undertake over 5,000 workplace raids a year, often relying upon low grade information provided by the public, information provided by employers and information provided by the police. 36. It is practice in some instances for the Home Office to collude with an employer so as to arrange a trap or a sting operation so that a number of (suspected) illegal workers can be directed to one place at the same or similar times so as to facilitate mass arrests with reduced operational concerns for the Home Office. 37. In 2014 a leaked document identified that a number of raids would be undertaken under the operational title of Operation Centurion. The two-week 6

7 crackdown was aimed at workplaces such as care homes, hotels, restaurants, construction sites, recruitment agencies and small businesses that were suspected of employing illegal workers. Concern was raised that in addition to information provided by the public, the Home Office was using racial profiling to identify potential targets: nail bars and Vietnamese nationals, laundries and Eritreans, barber shops and Nigerians Vis-à-vis an employer who has no statutory excuse for employing an illegal worker, the Home Office is in a dominant position and such dominance flows from the establishment of penalties by way of the Code of Practice with minimum and maximum levels of financial penalties dependent upon whether it was a first or subsequent breach combined with significant financial incentives to report suspected illegal workers or to actively co-operate with the authorities. 39. At page 11 of the Code of Practice, active co-operation is defined as meaning that an employer: Provide Home Office officials with access to its premises, recruitment and employment records and document checking systems when requested; Respond promptly, honestly and accurately to the questions of Home Office officials and information requests; Directors, managers and employees make themselves available to Home Office officials during the course of investigations if required; and There is full and prompt disclosure of any evidence the employer believes may assist the Home Office in its investigations. 40. To actively co-operate results in a reduction of a penalty by 5,000, the same reduction is offered for reporting suspected illegal workers to Immigration Enforcement. 41. There is no obligation in law placed upon employers to collaborate with Home Official officials. The Code of Practice is simply a Code, though its penalty provisions are elevated to a higher plane. The Home Office seeks through its officials to identify the potential cost of non-compliance as a means of securing compliance. However, employers are not obliged to give permission for a Home Office official to enter premises or to hand over personal details of employees. 7 Activists move to scupper illegal workers Channel 4 News (3 June 2014), accessed at 7

8 42. The Home Office has used the power of the potential reduction in financial penalties to persuade employers to actively engage in setting traps for its workers, often leading to its workers being detained, separated from family members and removed. 43. By such action, the Home Office fails to inform employers that co-operation in such circumstances is voluntary as there is no mandatory requirement to assist A refusal to co-operate may require the Home Office to obtain a warrant to gain legal entry. 45. A powerful weapon in the Home Office armoury, and one that may induce an employer to engage in collusion, is the power of immigration officers to enter and search business premises without a warrant and to arrest any suspected illegal entrants, overstayers or persons who are in breach of conditions or who have used deception to remain: section 28CA(1) Immigration Act Section 47 of the 2016 Act increases search powers as to personnel records, permitting an immigration officer to enter and search for employee records where s/he has provided identification and has reasonable belief that an individual has illegally entered or overstayed their permitted leave and that they have been illegally working at the premises. 47. To many employers, whilst they cannot be prosecuted if they refuse to cooperate, the civil penalty scheme is specifically designed to encourage cooperation for if the employer has failed to undertake the correct right to work checks it will be subject to a penalty and it will in almost all circumstances wish to reduce the penalty if at all possible. 48. One instance of collusion made media headlines in 2016: Byron s Hamburgers In July 2016, Immigration Enforcement raided a number of London branches of Byron s Hamburgers (Byron) and arrested 35 workers. The allegation of collusion between Byron and the Home Office centres on the setting-up of arrest by appointment meetings. 50. The Guardian reported: 10 8 Snitches, Stings & Leaks: how Immigration Enforcement works, Corporate Watch (30 August 2016) accessed at 9 It should be noted that the Home Office dismissed reports that an event was set up to lure workers to one place for immigration officials. The opposition position is taken by many members of Byron s staff. 10 It was a fake meeting : Byron Hamburgers staff on immigration raid The Guardian (28 July 2016), accessed at 8

9 Staff at Byron Hamburgers restaurants have told how the company trapped kitchen staff in an immigration sting by calling for a meeting about cooking burgers. In the first insider accounts of the swoop on foreign workers in one of Britain s most popular burger chains, one worker said they were summoned to a meeting about the dangers of medium and medium-rare cooking of burgers. This was strange, because we already had this training, said the worker, who has already been deported. A chef at a different branch in central London said they were told the meeting was about a new burger recipe. The targeting of staff at a dozen Byron restaurants in London was part of a carefully planned intelligence-led raid by the Home Office, which according to insiders involved between four and a dozen officers at each branch. One of the kitchen staff said she arrived for the meeting at 9.30am, but within minutes four immigration officers burst into the building. They said, nobody move, we re immigration, stay where you are, and then they started calling out names and took the people they were looking for aside, the worker said. The officers then questioned the people over several hours, witnesses said. 51. One migrant worker s experience was detailed in the article: The government has not confirmed how many were deported, but one chef interviewed by the Guardian said around 20 were taken to the first holding point after the raid. They had a list of names and some photos, which presumably they got from human resources in head office, said one worker. Another worker, who has already been deported, told how he was bundled into a van marked police immigration and taken to a Home Office immigration centre near London Bridge. There were 20 of us there, all from Byron. At the beginning, I couldn t believe what was happening. But then, when I realised they were going to deport us, I felt so bad, the chef said. They were destroying everything I have done. I worked hard, I paid taxes and Byron did this to us. It is immoral. They were happy to employ me for years doing really hard work that no British person would do. 9

10 After a few hours at London Bridge, he was sent to a series of detention centres before being deported. First, he was taken to Tinsley House near Gatwick airport, then to Verne immigration removal centre, a former prison in Dorset. He spent a week there, then was sent to Harmondsworth near Heathrow. 52. Detainees report being provided with no opportunity to call friends and collect property such as clothes and computers before being removed from the United Kingdom. 53. A striking aspect of the raids was Byron s subsequent press release where it asserted that it was under a legal obligation to co-operate with Home Office officials. This was an incorrect assertion. 54. Its defence, or statutory excuse, was that it had performed vigourous right to work checks and this was sustained upon inspection with the Home Office subsequently determining that Byron s had carried out the correct right to work checks on staff members but had been shown false or counterfeit documentation and therefore would not face civil penalty action. Does an employed owe any duty to a migrant worker unlawfully working? 55. The Court of Appeal held in Hall v. Woolston Hall Leisure Ltd [2001] 1 WLR 225 that contractual rights and duties purportedly owed by an employer are a nullity where the contact is unlawful from its inception consequent to an employee s immigration status. A person who is not lawfully permitted to work cannot lawfully enter into a contract of employment. 56. The Supreme Court has recently revisited the doctrine of illegality and reformulated it: Patel v. Mirza [2016] UKSC 42; [2016] 3 W.L.R Their Lordships observed that there were two policy reasons for the common law doctrine of illegality as a defence to a civil claim: a person should not be allowed to profit from his own wrongdoing, and the law should be coherent, not self-defeating, and should not condone illegality. In considering whether allowing a claim would be harmful to the integrity of the legal system depended on whether the purpose of the prohibition that had been transgressed would be enhanced by denying the claim; whether denying the claim might have an impact on another relevant public policy; and whether denying the claim would be a proportionate response to the illegality. Within that framework, a range of factors might be relevant and it was not helpful to prescribe a definitive list. 57. Though the reformulated test offers more flexibility it is likely that public policy considerations will continue to hold sway as it has done since Hall v. Woolston Hall Leisure Ltd. 10

11 58. As example is the approach adopted in Vakante v. Governing Body of Addey and Stanhope School (No 2) [2004] EWCA Civ 1065; [2004] 4 All E.R where the Court of Appeal considered a claim for race discrimination made by an asylum seeker who was seeking asylum and not lawfully able to work. Nevertheless, he secured employment as a trainee graduate teacher and was dismissed several months later. The Court held that the appellant could not pursue his complaints of race discrimination where those complaints were so inextricably bound with his own illegal conduct that if the tribunal permitted him to pursue the complaints it would give the appearance of condoning the illegal conduct. 59. In circumstances where the contract is a nullity, a migrant worker who does not enjoy permission to work will not be owed an implied duty of mutual trust and confidence as this again only flows under the terms of the contract. 60. The Supreme Court held in Taiwo v. Olaigbe [2016] UKSC 31; [2016] 1 WLR 2653 that while it was wrong for employers to mistreat migrant domestic workers on the basis of their vulnerable immigration status, such mistreatment did not amount to direct race discrimination contrary to the Race Relations Act 1976 or the Equality Act The lack of protection for migrants working unlawfully is a further incentive for employers to actively co-operate with the Home Office. 62. As the United Kingdom has not transposed the Employer s Sanctions Directive there is no enforcement mechanism by which an employer is to pay unpaid wages for migrants illegally working. 11 The government has determined that such a measure would be difficult to administer and would send the wrong message by rewarding breaches of immigration legislation An employer is to take care that the employment rights of foreign nationals lawfully employed are not adversely impacted as the duty of mutual trust and confidence will exist as well as a tortious duty of care. 13 July Directive 2009/52/EC of the European Parliament and of the Council of 18 June 2009 providing for minimum standards on sanctions and measures against employers of illegally staying third-country nationals. 12 Written statement to Parliament, EU Directive on sanctions against employers of illegally staying third-country nationals, laid in the House of Commons on 24 May 2011 by Damian Green, and in the House of Lords by Baroness Browning. 11

12 For further information as to the Byron raids and for informed opinion upon employer collusion, I would recommend reading articles authored by Dr. Katie Bales, lecturer in law, University of Bristol Law School, in particular Immigration Raids, Employer Collusion and the Immigration Act 2016 Industrial Law Journal (2017) 46 (2): This seminar paper is made available for educational purposes only. The views expressed in it are those of the author. The contents of this paper do not constitute legal advice and should not be relied on as such advice. The author and Landmark Chambers accept no responsibility for the continuing accuracy of the contents. 12