The Pitfalls of Immigration Checks

On 8 February 2014, Mark Harper, the Immigration Minister, resigned from his post after it came to light that his cleaner did not have the right to work in the UK.

In his resignation letter to the Prime Minister, he said that he had taken on a cleaner for his London flat in April 2007 on a self-employed basis. At that time, he had made checks to confirm her right to work, taking a copy of her passport and a Home Office letter which said she had the right to work. He said that when he became a Minister in the Cabinet Office in 2010 and again when he became Immigration Minister in 2012, he thought about this again but concluded he did not need to undertake any further checks because the documents he had seen led him to believe that the cleaner had Indefinite Leave to Remain in the UK, that is as a permanent residence, and so was entitled to work.

In the autumn of 2013, the Government introduced yet another immigration bill to Parliament. This new Immigration Bill proposes to require a new raft of immigration checks be undertaken not only by employers but by landlords, NHS Staff and vicars to check a person’s right to access services. Mr Harper said he thought it “prudent to check” that his own house was in order. Apparently when he did, he could not actually locate the documents he had previously copied (possibly his cleaner kept his house too tidy). He asked his cleaner for a further copy and this time got immigration officials check them, revealing that in fact she did not have Indefinite Leave to Remain after all.

The consensus seems that Mr Harper did nothing wrong. As he did not actually employ the cleaner but she contracted for services as self-employed, he was under no obligation to perform checks, unlike employers. However he resigned he said because, as Immigration Minister, who is taking legislation through Parliament to “toughen up our immigration laws”, he should “hold myself to a higher standard than expected of others”. The implication is that he was duped by some dodgy documents and apparently the matter is now in the hands of Immigration enforcement.

But if the Immigration Minister cannot get it right, what hope is there for others? Mr Harper only found out that his house was not as clean as he thought it was almost 6 years after he took on his cleaner and only after he got his own immigration officials to verify the documents he had himself checked and thought were ok. Your local vicar or a midwife attending a woman giving birth would not have that facility. However, if these checks are not carried out properly, the bodies that should have undertaken them can be subject to penalties, as employers are now.

Currently, employers only have a defence to a civil penalty where they can demonstrate that they have taken the prescribed steps to copy and retain copies of the correct documents for the employee. Mr Harper admitted that he could not find his cleaner’s documents. Other employers in this situation, including those that we have represented, have then been liable for a civil penalty. The fine per worker is £10,000, reduced to £5,000 for a first offence.

We have successfully represented a number of employers who believed they were employing workers who had the right to work and either have not retained copies of the correct documents or the documents they have retained have led them to believe that the employee did have the right to work in the UK when in fact they did not. We have also assisted employers seek to reduce the civil penalties imposed on the grounds of hardship.

So far there is no word on whether Mr Harper has volunteered to pay a civil penalty. If he believes he should “hold myself to a higher standard than expected of others”, perhaps he should: a donation to the “whatever it costs” flood fund might be appropriate.

Our Immigration and Small Business Team offer advice to employers on employment checks and Civil Penalties. Please contact businessteam@davidgray.co.uk.