Immigration Minister Mark Harper has resigned from the Government because in 2007 he employed a cleaner who did not have permission to work. Harper claims that he has not broken the law but is resigning because “I should hold myself to a higher standard than expected of others”. The first part is arguably untrue: he may well in fact have broken the law. There are two separate laws for us to look at.

The first is the Asylum and Immigration Act 1996. This was the law in force at the time that Harper employed his cleaner, in 2007. The new law only came into force in 2008. Section 8 of the 1996 Act created a criminal offence of employing a person who did not possess permission to work. Subsection 2 created a statutory defence, though, if it could be proved:

(a) before the employment began, there was produced to the employer a document which appeared to him to relate to the employee and to be of a description specified in an order made by the Secretary of State; and

(b) either the document was retained by the employer, or a copy or other record of it was made by the employer in a manner specified in the order in relation to documents of that description.

Harper says in his resignation letter correspondence with David Cameron that he cannot now produce the documents of which he allegedly took copies back in 2007:

I undertook an extensive search to locate the copies of documents I had taken but unfortunately I was unable to locate them.

Without being able to produce actual copies of the documents he claims to have copied and retained in 2007, he is in some difficulty proving that he did indeed retain take and retain copies as he claims. The applicable Home Office guidance at the time warned employers (see page 5)

You should then keep a record of every document you have copied. By doing this the Immigration Service will be able to examine your right to the defence if they detect anyone working illegally for you.

Your word in court is evidence, though, and if a magistrate accepted Harper’s word for it then the defence would be established and he would be in the clear. If not, the Home Office website warns such employers as follows:

If you employed an illegal migrant worker from 1 May 2004 to 28 February 2008 and did not establish a statutory defence, you could still be prosecuted and fined up to £5,000 per illegal worker in a Magistrates’ Court.

Harper suggests in his resignation letter that his cleaner was self employed. This does not automatically get him off the hook, though. Section 8(8) of the 1996 included some definitions:

“contract of employment” means a contract of service or apprenticeship, whether express or implied, and (if it is express) whether it is oral or in writing;

“employ” means employ under a contract of employment and “employment” shall be construed accordingly.

Employing a cleaner might well be under a ‘contract of service’. The full employer guidance addressed this issue at p34 with a series of questions for employers to ask themselves about the nature of their relationship with the worker in question, stating

whether a person is truly your employee or self-employed will depend on all the facts and circumstances of the case.

There were very few prosecutions under section 8 of the 1996 Act, perhaps because it was considered absurd overkill to criminalise those who, like Mark Harper, did not take and retain copies of certain documents when they took on a new employee. The new regime created by the Immigration, Asylum and Nationality Act 2006, in force from 2008, retains at section 21 a criminal offence for knowingly employing a person without permission to work but sets up a civil penalty regime for those who did so accidentally.

The civil penalty regime starts at section 15 of the 2006 Act. Section 15(7)(c) requires an employer

to take specified steps to verify, retain, copy or record the content of a document produced to him in accordance with the order

The full guidance to employers on the 2006 Act regime is very clear (page 11):

You must take and retain a copy of the document, in a format which cannot later be altered

The 2006 Act includes at section 25 a similar interpretation provision to the 1996 Act regarding employment:

a reference to employment is to employment under a contract of service or apprenticeship, whether express or implied and whether oral or written

Under the current civil penalty regime, Harper would surely be liable. He has not retained the documents as required. The penalty would normally be £5,000, the same as imposed on Baroness Scotland when she was a minister. Indeed, the story then was that she had carried out the checks but had not retained copies of the documents, just the same as Harper today. Chris Grayling, now Lord Chancellor but then Shadow Home Secretary, had some pretty strong words for her, stating that employers could not be inadvertently innocent and pointing out that she was the person who stood up and argued these laws were necessary.

As Mr Harper will be very well aware, the Immigration Bill he just steered through the House of Commons lifts the maximum penalty to £20,000. Mr Harper has timed his revelation rather well from a financial perspective.

Harper’s Bill will also expose private landlords to the same sort of regime of which he may himself have fallen foul. Opponents of the Bill are concerned that even the risk of such a penalty will deter landlords from renting to those that might not have permission to reside in the UK, causing difficulties and discrimination for lawfully resident and even British ethnic minorities. With 25% of Conservative MPs apparently being private landlords, how many more ministerial resignations will we see in future because of such easy to make slip ups?