What is the psychological effect upon employers of the increasing stringency of their obligations under the Points Based System?

The civil penalties under section 15 of the Immigration and Nationality Act 2006, which, in February of 2008, created the possibility of a £10,000 penalty to be paid by an employer for each person he or she is found to employ who does not have permission to be in the UK, or whose permission does not entitle them to work. Employers are liable for this penalty whether or not they knew that their employee didn’t have the necessary leave to enter or remain in the UK or permission to work.

If they did have such knowledge employers may be prosecuted under section 21 of the same Act – and could be sent to prison for up to 6 months.

But the dangers facing employers don’t end there. Unless they keep up with their reporting obligations with regard to employees from outside the European Economic Area (the “EEA”) as Tier 2 Sponsors – the UKBA could remove their Tier 2 Sponsor licence – which could be nothing short of catastrophic for those employers dependent upon skilled labour from outside the EEA.

So it is not mere hyperbole to say that the joint effect of the regimes imposed on sponsors is a kind of enhanced vigilance bordering on paranoia.

The recent Employment Appeal Tribunal judgment in H Okuoimose v City Facilities Management (UK) Ltd UKEAT/0192/11/DA demonstrates how employers’ concerns as to the lawfulness of a person’s employment can lead to injustice.

The Claimant, a Nigerian national with a Spanish husband, was working for the Respondent at an ASDA store when, on 8 July 2010, the Respondent suspended her without pay and demanded evidence of her permission to work in the UK. The Respondent did this because the Claimant’s passport had a UKBA endorsement indicating that she had been “given” the right to reside in the UK as the spouse of an EEA national exercising Treaty rights in the UK until 8 July 2010. The Claimant told the Respondent that she’d applied to the UKBA for renewal of her endorsement. The Respondent then contacted the UKBA themselves.

The UKBA said that they had checked their records and could not confirm the Claimant’s entitlement to work and, furthermore, unless the Claimant did provide the Respondent with evidence of her entitlement to work:

“[she would] not have a statutory excuse against liability for payment of a civil penalty for employing an illegal migrant worker”.

The Respondent sacked the Claimant accordingly. Not long after the UKBA wrote to the Respondent, it provided a further letter to the Claimant, in which it said that until her application had been decided she would:

“be treated for immigration purposes as a family member of a legally resident EEA national and, as such, [she was] free to live and work in the UK”.

The Respondent therefore reinstated her to her job.

The Claimant’s case in the Employment Tribunal, and on which she succeeded after her first instance appeal was dismissed, was that she had been wrongly suspended without pay and that she had always been entitled to work in the UK as the family member of a EEA national. It did not matter, as His Honour Judge McMullen QC accepted, that she did not have the necessary residence documents. Those documents did not give her the right to work – they were simply evidence of the existence of that right, which came into being because the Claimant was married to an EEA national. This was clear from Article 25 of the Citizens’ Directive:

“Possession of a registration certificate as referred to in Article 8, of a document certifying permanent residence, of a certificate attesting submission of an application for a family member residence card, of a residence card or of a permanent residence card, may under no circumstances be made a precondition for the exercise of a right or the completion of an administrative formality, as entitlement to rights may be attested by any other means of proof.”

The Claimant was accordingly awarded her pay for the period in which her employment had been suspended.

At first instance the judge had found that the Respondent had been entitled to act as it had done because of its concerns about being penalised under section 15 of the Immigration and Nationality Act 2006. That judgment was however overturned because it was clear that that section of that Act had no application to the Claimant.

What is interesting about all this is the role of the employer as the delegated enforcer of immigration control. A sense of paranoia will inevitably lead people entrusted with such a role into a trigger happy response to a concern about their employees’ entitlement to work. This is a happy example of someone who was able to obtain redress against the effect of such a disposition on her.

Heaven knows how many examples there are to the contrary, but perhaps it is naive to imagine that they are anything other than what was and is intended.