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Baroness Scotland


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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.

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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.


15 Responses

  1. Well, I would think that one of the aims and benefits of this law (and the most important one in my opinion) is to stop the exploitation of the most vulnerable people in the society, and also to help honest and small law-abiding businesses compete against the law-breaking ones by eliminating the illegal practices of the latter.

    When the latest changes to the law came in force in February 2008, I remember that there was plenty publicity about it. The government had produced lots of adverts for TV, radio and the papers. They also were saying at the time that HMRC were sending leaflets to employers about the new changes, with the usual staff that HMRC sends businesses (relating to tax returns, NI and what not). So, if the new law was implemented in the above way, I don’t see a reason why small companies should not be aware of the law and why would it be so hard for them to abide by it. You can find guidance on UKBA website about the proper checks that need to be done and there is even an Employer checking service, to confirm the right to work of the potential employee, it the employer is unsure/has doubts about it. To me, the checks seem simple enough.
    If somebody is becoming an employer for the first time (this would include people who employ nannies, housekeepers, etc) I would think that they would need to seek advice from somewhere as to what are their responsibilities as employers and the information about the £10000 potential liability and proper checks needed would have been given to them.

    So, FM, with all due respect, I disagree with you in that small employers cannot/should not be expected to comply with the rules. I believe that, in the UK, small companies are the ones that are employing people without the right to work and a valid visa and in this way exploiting the most vulnerable parts of the society who are forced to accept any pay and any conditions of work.

    For example, there are restaurants that are paying £20 a day (for 8-10 hours) to their employees. Yes, that little.
    Can you imagine how much money this type of unscrupulous, greedy restaurant owner takes from this worker and the state. Quite often, these people will work 6 days a week, sometimes even without a day off.
    £10,000 fine – let’s see:
    If we round off the national minimum wage to £6 an hour, the owner saves £4 an hour approx.
    £4 over a 10 hour day = £40.
    Over 6-day working week = £240
    £10,000/£240 = 42 weeks.
    So, in this particular scenario, this employer can be fined for the same worker £10,000 a year and he or she would not be worse off.

    I don’t know whether the current rules/law are the best ones possible, but I personally would want these kind of exploiters to be stopped and I see the rules should apply to small businesses, without exception and even more so, for the above reasons.

    And, as for Baroness Scotland, one can have sympathy for her as a person, and I believe that she had paid her housekeeper a fair wage, but, how embarrassing and unprofessional. She, of all people, should have checked her housekeeper’s status document. It’s not that complicated, is it?
    Housekeeper married to a Brit, therefore without even checking the rules, I would believe that the crucial document the housekeeper would have needed to possess, would be one of the following:
    -British Passport
    -ILR, or
    – some kind of visa giving right to work.
    Plus whatever other document is needed, if one of those cannot be used in isolation.

    And, of course, she should be treated as everyone else who broke the law/rules.

  2. It is typical for New Labour to

    1. pass a law that is rarely enforced – if that is the case – just for show.

    2. pass a law that they have not thought through so that clearly Baroness Scotland did not really understand it.

    3. pass a law that heaps further misery on the many people who have no status who cannot work or get an benefits. So long as they do not access public housing it seems Labour do not mind what happens to them.

    4. to trot out the usual mantra that undocumented people should go back home when they know very well they will not.

    Once again think back to the time when we were told that if we had more women and ethnic minorities in power we would have more compassionate laws. What rubbish that has turned out to be.

    It will be interesting to see what if anything happens to BS. Clearly under the stupid law that she helped to pass she should be heavily fined. It will be interesting to see how NL wriggle their way out of this.

    The way to lessen exploitation of undocumented people would be to give them the right to work. They still have to work and this law does not stop them being exploited.

    The history of the legislation is interesting as of course it is barely on the books before it is changed. No wonder few people really understand what the law is.

  3. Alex & Natasha

    With you on the analysis of new labour, although to be balanced it was the HO under John Major’s Conservatives that started this ball rolling.

    I think BS should be fined £10,000 and that should be the end of the matter on the basis that it is a civil penalty. I wouldn’t expect the transport minister to resign over a parking ticket for example.

    My own personal view of New Labour is that they are the political Pharisees of our time, and certainly hypocritical.

  4. FM, As a black female working in immigration, I hope you’ll allow me to share my own perspective on this delicate issue.

    Having thoroughly examined the legal implications of the civil penalty route and the penurious consequences for other innocent employers who fall foul of such complex legalities, there really is only one response to Baroness Scotland’s plight:- “Ah haa ha ha ha ha ha oh tee hee tee hee dearie me ha ha”. How’d ya like them apples? Doh!

  5. I do not really mind whether BS resigns or not. NL would no doubt find a replacement who toes the line in much the same way.

    But if BS pilots a law through the HL as a HO minister without really understanding it, it suggests that she is not really up to the job although with NL this is clearly not considered to be a reason that should disqualify you.

    BS should be hit with the full rigour of the law in the same way as anyone else. I hear that her ex-housekeeper had her door smashed in yesterday by Immigration. So it seems to be the immigrant who gets the real humiliation still under NL.

    Remember that BS is AG for a govt that delights in being particularly nasty to vulnerable people. I think a bit of BS being made an example of by the Press would not go amiss.

    If BS gets a penalty notice she might appear on TV waving her cheque for £10,000 (and it would be interesting to see if she can still force a smile). If it is a matter of going to Court I would like to see her given plenty of coverage by the Press. Maybe in the few months they have left even the automatons of NL might be prompted to pause for thought.

  6. Hi all.The immigration system exists to safeguard the uk borders and it’s citizens.So why oh why are they persecuting the citizens it’s designed to protect?
    For a good few years nobody bothered to count people leaving the country and consequently nobody knows how many folk are overstaying.
    Ok the damage is done,so what shall the government do about it?… ‘I know’ says one bright spark (B.S?).’We’ll put the onus on the british people,publicly humiliate them and hang them out to dry for all to see when we catch them employing these illegal folk who er…WE’VE lost track of’ ! ‘We’ll use businesses to help tidy the job up’.Oh and then we’ll deport the foreign national,despite the mind bending trauma for the English partner who’s married the migrant we allowed in.What a confounded nuisance love is in all this’
    On the whole one can see the logic behind it.Squeeze people out of the country by making it hard to get illegal work.And definately exploitation of foreign workers is a shameful thing.But it seems to me that too many decent and innocent english folk are paying the price of these past years when the borders were not so rigorous.And it’s really not their fault nor their business.
    For evidence of this does anyone remember the queen last year? Even Buckingham palace fell foul of the law by employing Igor the illegal footman.No prosecutions there though of course ahem!

    1. In reply to your comments I agree wholeheartedly it is one rule for one and another for the other in the UK, why should some individuals be prosecuted for employing illegal workers and not the others the powers that be should be held to book for illegal workers i.e Buckingham Palace.
      I am completely ashamed of this whole immigration farce and how thousands of people every day are subjected to horrendous treatment by the immigration system they arrive in this country albeit illegally the government have allowed this to continue to the levels of which seems to be unknown if they are willing to work allow them to work deduct tax and NI contributions if these individuals are willing to work and allowed legally to do so then they cannot be subjected to slavery by unscrupulous employers I say if they are here let them work stop this ridiculous charade and stop dishing out fines to some employers its time we had an amnesty very long overdue.

    2. You make a very good point re the tendency to off load responsibility from government onto employers and others. This seems to be the guiding principle of he points based system as well. And employers, colleges and now private individuals who employ others are finding that they don’t like it!

    3. Ref her maj’s footman,he claimed that when interviewed for the job they took no copies of his documents or did any checks on his immigration status.He had shown his papers and explained he would need a new work permit but it had not been noted.His visa hadn’t expired but it was granted on condition he only worked for one particular employer while studying a degree in hospitality.Changing employer put him in breach and therefore illegal.
      Well that was the story according to the tabloid,not my words!
      Speaking as a member of joe public the vast majority of people don’t think about immigration much.They’re not dating a foreign national,not related to a foreign national and don’t have issues or even opinions on it.Totally clueless infact.After all it’s someone else’s job isn’t i?…..er well no.Not if you’re an employer or a college it seems.Best get swotting up.
      Apparently baroness scotland thought her housekeeper was a nice woman and must have misjudged her character.Chances are she was a very loyal and otherwise honest worker.It’s just too easy to forget how privileged we are here and to despise people who use a little deceit to better their life and help their poorer family.That IS true loyalty afterall.
      I feel sorry for the English husband too when/if they locate the lady.I’ve been in a slightly similar position and boy is he going to suffer!

    4. P.S assuming she either leaves voluntarily or gets deported her chances of becoming legal would depend on a spouse visa surely?
      The use of deception would earn a ten year ban maybe .Concession for family members,spouses etc may not apply due to the ‘contrived in a significant way to frustrate the rules’ clause.Which leaves an appeal success hanging by a thread on article 8 issues perhaps?
      I think if I were the husband i’d be preparing for a year or two of uncertainty and be phoning yourself.Freemovement!

    5. A – nice to have you back.

      I suspect the cleaner and her husband will get free legal advice from BS off the record over dinner.
      Don’t forget they could also go to another EU country for 6 months and return under the Surinder Singh route.

    6. Morning Mr T! Yes i’d forgotten the E.U route.But it’s a bit of a rigmarole for them.The lady’s probably clever enough to realise that,once she leaves these shores,she’ll never get back in again.Not under immigration rules at least.She’ll maybe disappear into the system again (if her notoriety allows it).
      Ironically that’s exactly what the govt are trying to stamp out by introducing all these employment laws.
      It’s sort of counter productive to introduce bans on re entry at the same time really.And the 6 month concession obviously didn’t help here!
      Would like to know if the husband knew all along too.If he did then he’s technically aided and abetted the offence.But if not then it’s going to hurt having being mis led by the missus,coupled with the misery of fighting to keep the missus here!
      Either way he’s just a bystander who who’s been put in a vulnerable position by it all.We’ll be expected to check particulars before dating,as well as employing next :-)