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Should she go?


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I’m sitting on the fence on this one. One the one hand it would be a tragedy if someone of Baroness Scotland’s talents and background were sacked over a silly law like this one. On the other, her departure might serve to prove just how silly that law really is. As for whether the civil penalty scheme is to be likened to the Congestion Charge, I draw your attention to the following official line from UKBA in a press release as recent as 17 September 2009:

Jane Farleigh, the UK Border Agency’s regional director for Wales and the South West, said:

‘The message is clear for employers – we will not tolerate illegal working. It is a crime that not only undercuts local business but also has a serious impact on communities, taking jobs from those who are genuinely allowed to work.

‘There are simple ways of checking a foreign national’s right to work and there is no excuse for not checking the identity of those applying for jobs.

‘We support and encourage employers to comply with the rules, but when they fail to do so it is right that we crack down on them.’

A tough new civil penalty system was brought in last year to provide a fast and effective way of tackling employers who fail to carry out proper checks on workers from outside Europe.

A fine of up to £10,000 per worker can be imposed for every illegal worker found at a business.

“Crack down” using a “tough” scheme to “tackle” defaulting employers. It gets better, though, in another press release the same day about a different employer:

Mabs Uddin, a UK Border Agency Inspector, said:

‘These arrests show our commitment to operations targeting businesses which employ illegal workers. It is a crime that not only undercuts local business, but also has a serious impact on local communities; taking jobs from those who are genuinely allowed to work.

‘We will act on any information received and if appropriate visit the place concerned to make arrests. We will not tolerate illegal working in East London.’

The workers were employed by Dila Ltd. who made clothes which were sold under the high street retailer Jane Norman’s brand. However, there is no suggestion Jane Norman were involved in the employment of these individuals.

Now employing illegal workers is a “crime” and a social evil that takes British jobs from British workers (which is economic nonsense, of course – here is no finite number of jobs in the economy). How about yet another press release also from 17 September 2009?

The Good Food Company was told that it faces a fine of up to £40,000 for employing illegal workers, unless it can prove that the correct right-to-work checks were carried out.

UK Border Agency’s area director Gareth Redmond said:

‘We’re committed to removing people who have no right to be in the UK – and to taking tough action against rogue employers who use and exploit illegal workers.

‘So we’ve brought in heavy fines of up to £10,000 per illegal worker to hit those who don’t play by the rules where it hurts.

‘Today’s operation should serve as a warning for those who break the law.’

Anyone who suspects that illegal workers are being employed at a business in the London area should contact Crimestoppers on 0800 555 111. Anonymity can be assured.

You probably start to get the picture. These cases are far more serious than that of Baroness Scotland as the employment was on a far bigger scale and sounds a lot less innocent. Yet I can’t resist continuing a little further in the same vein. Try this quote from a press release from 11 September 2009:

The operation was led by Immigration Officer Dave Butler, of the Essex and Herts Local Immigration Team, who said:

‘We are working hard to pull the plug on the illegal jobs which lure illegal immigrants to come to the UK in the first place.

‘Illegal working is unfair on honest employers who recruit staff with the right to work in the UK and who pay them a proper salary.

‘Employers who don’t play by the rules will get struck off our register, lose the right to recruit staff from outside Europe, face on the spot fines and could potentially end up in jail.’

Or this one, again from 11 September 2009:

All three car washes were issued with on-the-spot penalty notices for employing illegal workers and may each now face a fine of up to £10,000. To avoid this, they must prove to the UK Border Agency that they carried out the correct right-to-work checks for employing workers from outside the European Union.

Rachel Challis from the UK Border Agency’s Boston-based local immigration team said:

‘We are working hard to pull the plug on the illegal jobs which lure illegal immigrants to come to the UK in the first place.

‘Illegal working is unfair on honest employers who recruit staff with the right to work in the UK, and who pay them a proper salary.

‘Employers who don’t play by the rules will get struck off our register, lose the right to recruit staff from outside Europe, face on-the-spot fines and potentially end up in jail.’

A tough new civil penalty system was brought in last year to provide a fast and effective way of tackling bosses who fail to carry out proper checks on workers from outside Europe.

The message here (in amusingly identical language allegedly from separate human beings) isn’t quite that the Home Office considers civil penalties for employers to be equivalent to a Congestion Charge fine or parking ticket. Baroness Scotland is not from a political background and clearly lacks the political nouse not to say something like this. That is not a good reason to sack her, though – otherwise we’ll only be left with professional political hacks who have continually practised the Dark Arts since their student union days.

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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.


13 Responses

  1. very well said yes all those who had been fined or about to had employed immigrants and were not paying them proper wages that was according to officials of UKBA, only this time when it was that of a QC Baroness Scotland and the tone changes to civil penalties being congestion charge, we all have to read animal farm again how very tru what George Orwell wrote

  2. Are we really better off with Baroness Scotland? In the Standard today she is quoted a saying about her ex-employee:-

    “I thought she was a really nice woman, it looks as if I made a number of errors of judgment in terms of her character”.

    So not much respect for overstayers despite her “talents and background”.

    1. Is BS not allowed to possess human emotions just because she is the Attorney General? She was lied to and deceived, not by a person without a choice, but by a person who could’ve applied for proper visa on the basis of her marriage. Her housekeeper may have been in a bad position and without much choice, just trying to make a living, before she got married, and I have lots of sympathy with those people, but after she got married to a reasonably well off person, her story becomes different in my opinion. She had a choice, but she chose to keep using her forged documents.

      BS should’ve known better, but I believe her ‘human’ brain and not her ‘legal’ brain was turned on when she did the checks and thought it unnecessary to take the copies. BS was punished appropriately, as anyone else in her position, with a civil penalty.

      Whether BS’s job should be affected was for Mr Brown to assess and he has made his decision. Politically, with the electorate angry and disillusioned with all the recent scandals, the current state of affairs in the country and the public feeling about immigration fueled by his own Labour Party, this may not have been the wisest option, but then, could the reputation of the Labour Party be damaged any further, they are already at rock bottom, so maybe this will not make much of a difference.

      BS obviously has valuable skills for the AG post, that’s why she had presumably been chosen, although, of course, the mistake that she made is quite embarrassing because of her legal credentials and her participation in the passing of the law in question.

      The debate should move from talking about BS to trying to find a better and simpler law and hopefully this affair will serve as a springboard. This law is wrong in that UKBA is passing off its responsibilities to the public, but, because it is so simple for UKBA to administer (the employers are doing its job all around the country), it is effective and quick in punishing those who break the law. Unfortunately, it is also punishing otherwise law-abiding people (those who are not set to exploit and pay miserable wages) if they forget to do the proper checks. That’s why it should be improved. Anyone has a better solution?

    2. I agree I was unfair to BS and overlooked the fact that she was given false documents, apparently. She probably feels stitched up by her housekeeper.

      A £5,000 fine seems a lot for getting deceived by false documents but it does show what a stupid law it is. The idea that you must photocopy docs is so that you can show that you did actually inspect them presumably.

      Since the housekeeper married in 2007 she would be told to go back to Tonga to apply for a visa since she has no current leave. Might the fact that she overstayed and then worked mean that she would be refused?

      You cannot stop people overstaying. And now they can neither work nor get treatment from the NHS. Whatever the solution it needs to be more humane.

  3. I think there is an inherent problem in what we are being told by the media. That is, is the cleaner really an illegal immigrant? We are told she is married to a Solicitor, and it would be very strange indeed if following her marriage she did not apply for and get a 2-year spouse visa, and later, ILR.

    Of course had she done that she is not an illegal immigrant at all, and the offence of Baroness Scotland is merely that she did not photocopy the evidence. However, if the cleaner didn’t get a spouse visa, then the documentation presented to Baroness Scotland would have shown she had no right to work in the UK, in which case Baroness Scotland has a distinctly weaker case, and must go.

    1. I don’t know her reasons, but possibly it has to do with the fact that the 2 year spouse visa costs £585, plus a further £820 for ILR. Also if I’m not mistaken she would have had to apply from her home country, so she would have had the return airfare to pay. That’s a lot of money for someone employed as a cleaner.
      The irony is that if her husband were a national of any other EEA country apart from the UK, she could have got a 5 year family permit for free. (Serbia is not an EEA country.) It’s a case of the UK government discriminating against its own citizens.

  4. The right approach should be did she commit a wrong which is significant enough to make her position untenable ?.She acted in good faith when employing the domestic worker and there was no political cover up.However,the fact that she equates the fine as a mere congestion charge fine showed she did not recognise the seriousness of the offence. She downplayed the situation and this could be a threat to her position not the offence in itself.

  5. I don’t see that her ability is relevant really – and certainly not her background. You shouldn’t stay just because you’re good, or just because you’re a woman or black.

    I have two thoughts about this. First, I can’t understand her staying from a political viewpoint. This is damaging Labour at an important time, and from a partisan viewpoint it makes sense for her to go – in fact, that made sense several days ago. This silly affair is overshadowing a vital conference for Labour, and has already overshadowed the PM’s visits to the UN and G20.

    Second, leaving aside political consideration, while I’m not sure she should have to resign if there were this cleaner business alone, it isn’t alone. For a start, she compounded the mess with her crass reference to the congestion charge. She should have gone then, if not before.

    But there’s also the matter of the London allowances she took which, although “within the rules”, in the famous phrase, she obviously should never have had. If you can pocket sums like that from the taxpayer’s purse, on top of a ministerial salary, then no wonder £5,000 seems like the congestion charge.

    So I’m in no doubt she should go. I’m amazed she’s still there, actually.

    1. From a purely political viewpoint, no doubt you are right. But ability and background do seem relevant to me, even if by no means an overriding consideration. Diversity and talent at the top are important.

  6. Hmm, this story is becoming really depressing.

    In my opinion, these are the possible scenarios:

    1) BS is telling the truth. She checked the passport.

    BS was shown a different fake passport to the original, genuine passport of Ms Tapui. This other passport appeared to be in order with the appropriate work permit/permission.
    In this case, BS made a mistake of not copying it. If the immigration officials found this forged passport in the raid on Ms Tapui’s home, I believe, this would be enough of an evidence to conclude BS was telling the truth.
    She was given the correct penalty. As for the question of should she go, in this scenario, I would say no. Politically maybe not a good decision, but I don’t think it is right to dismiss people on basis of bad press only and BS’s mistake, although embarrassing and foolish, was not unforgivable in my opinion . Skills and abilities should be taken into account.

    However, if the immigration officials have not recovered this other passport in the house raid made to Ms Tapui’s home, the UKBA has done an unprofessional/whitewash job in stating that the investigation was finished. They cannot just choose to believe BS, they should have talked in detail to Ms Tapui.

    BS was shown the original passport of Ms Tapui. It seems that this passport currently has an expired visa, it the papers are to be believed.
    This scenario seems less believable, as if BS looked at the passport she would have noticed that the visa was not valid. But still, it is a possibility.
    If this is the case, BS did not properly check the documents and she, of all people, should have done so, having been instrumental in passing of the relevant law. This is a worse scenario for BS’s reputation than the one above, obviously. If immigration found this passport in the raid, this means that they couldn’t have been satisfied that BS did proper checks. Bad job/decision of UKBA.

    But, again, there might’ve been another forged visa in MS Tapui’s passport on a different page in the passport and this page might’ve been taken out of the passport at a later date. This would come under scenario 1)a. Hard to prove.

    2) BS never checked the passport.
    The most disappointing scenario. BS lied. I was hoping this not to be the case, but I am not so sure now, after seeing what Ms Tapui is saying.
    If this is the case, BS should be dismissed with immediate effect.

    And, finally, will the truth ever out?

  7. If BS should be sacked, it’s because of the stupid law she helped pass. She’s been hoisted on her own petard (translation: propelled into the air by the force of her own fart). The law exists solely to assuage the anti-immigration lobby as it is not applied to the vast majority of those working illegally – those in the service sector – as that would have massive implications for the public purse. So in this case the law was applied at the behest of the Daily Mail who wanted a good anti-immigration story and a reason to knock a Black Labour AG. In other cases recently, the law has been applied to unionised cleaners at the behest of an agency using the law solely to discipline their workforce. Otherwise it is held in abeyance and wheeled out from time to time in set-piece raids to give the UKBA and government some populist press coverage. To paraphrase Phil Woolass, the criminalisation of hard-working migrants and their employers is the road to hell.