(1)Subject to subsection (2) below, if any person (“the employer”) employs a person subject to immigration control (“the employee”) who has attained the age of 16, the employer shall be guilty of an offence if—
(a)the employee has not been granted leave to enter or remain in the United Kingdom; or
(b)the employee’s leave is not valid and subsisting, or is subject to a condition precluding him from taking up the employment,
and (in either case) the employee does not satisfy such conditions as may be specified in an order made by the Secretary of State.
[F1(2)It is a defence for a person charged with an offence under this section to prove that before the employment began any relevant requirement of an order of the Secretary of State under subsection (2A) was complied with.
(2A)An order under this subsection may—
(a)require the production to an employer of a document of a specified description;
(b)require the production to an employer of one document of each of a number of specified descriptions;
(c)require an employer to take specified steps to retain, copy or record the content of a document produced to him in accordance with the order;
(d)make provision which applies generally or only in specified circumstances;
(e)make different provision for different circumstances.]
(3)The defence afforded by subsection (2) above shall not be available in any case where the employer knew that his employment of the employee would constitute an offence under this section.
(4)A person guilty of an offence under this section shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale.
(5)Where an offence under this section committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of—
(a)any director, manager, secretary or other similar officer of the body corporate; or
(b)any person who was purporting to act in any such capacity,
he as well as the body corporate shall be guilty of the offence and shall be liable to be proceeded against and punished accordingly.
(6)Where the affairs of a body corporate are managed by its members, subsection (5) above shall apply in relation to the acts and defaults of a member in connection with his functions of management as if he were a director of the body corporate.
[F2(6A)Where an offence under this section is committed by a partnership (other than a limited partnership) each partner shall be guilty of the offence and shall be liable to be proceeded against and punished accordingly.
(6B)Subsection (5) shall have effect in relation to a limited partnership as if—
(a)a reference to a body corporate were a reference to a limited partnership, and
(b)a reference to an officer of the body were a reference to a partner.]
(7)An order under this section shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.
(8)In this section—
“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.
[F3(9)Section 28(1) of the Immigration Act 1971 (c. 77) (extended time limit for prosecution) shall apply in relation to an offence under this section.
(10)An offence under this section shall be treated as—
(a)a relevant offence for the purpose of sections 28B and 28D of that Act (search, entry and arrest), and
(b)an offence under Part III of that Act (criminal proceedings) for the purposes of sections 28E, 28G and 28H (search after arrest).]
Textual Amendments
F1S. 8(2)(2A) substituted for s. 8(2) (1.4.2003 for specified purposes) by Nationality, Immigration and Asylum Act 2002 (c. 41), ss. 147(2), 162(1) (with s. 159); S.I. 2003/754, art. 2(1), Sch. 1
F2S. 8(6A)(6B) inserted (1.4.2003) by Nationality, Immigration and Asylum Act 2002 (c. 41), ss. 147(3), 162(1) (with s. 159); S.I. 2003/754, art. 2(1), Sch. 1
F3S. 8(9)(10) inserted (1.4.2003) by Nationality, Immigration and Asylum Act 2002 (c. 41), ss. 147(4), 162(1) (with s. 159); S.I. 2003/754, art. 2(1), Sch. 1
Commencement Information
I1S. 8 wholly in force at 27.1.1997; s. 8 not in force at Royal Assent see s. 13(3); s. 8 in force for certain purposes at 1.12.1996 and wholly in force at 27.1.1997 by S.I. 1996/2127, art. 2
(1)The Secretary of State must issue a code of practice as to the measures which an employer is to be expected to take, or not to take, with a view to securing that, while avoiding the commission of an offence under section 8, he also avoids unlawful discrimination.
(2)“Unlawful discrimination” means—
(a)discrimination in contravention of section 4(1) of the M1Race Relations Act 1976 (“the 1976 Act”); or
(b)in relation to Northern Ireland, discrimination in contravention of Article 6(1) of the M2Race Relations (Northern Ireland) Order 1997 (“the 1997 Order”).
(3)Before issuing the code, the Secretary of State must—
(a)prepare and publish a draft of the proposed code; and
(b)consider any representations about it which are made to him.
(4)In preparing the draft, the Secretary of State must consult—
(a)the Commission for Racial Equality;
(b)the Equality Commission for Northern Ireland; and
(c)such organisations and bodies (including organisations or associations of organisations representative of employers or of workers) as he considers appropriate.
(5)If the Secretary of State decides to proceed with the code, he must lay a draft of the code before both Houses of Parliament.
(6)The draft code may contain modifications to the original proposals made in the light of representations to the Secretary of State.
(7)After laying the draft code before Parliament, the Secretary of State may bring the code into operation by an order made by statutory instrument.
(8)An order under subsection (7)—
(a)shall be subject to annulment in pursuance of a resolution of either House of Parliament;
(b)may contain such transitional provisions or savings as appear to the Secretary of State to be necessary or expedient in connection with the code.
(9)A failure on the part of any person to observe a provision of the code does not of itself make him liable to any proceedings.
(10)But the code is admissible in evidence—
(a)in proceedings under the 1976 Act before an employment tribunal;
(b)in proceedings under the 1997 Order before an industrial tribunal.
(11)If any provision of the code appears to the tribunal to be relevant to any question arising in such proceedings, that provision is to be taken into account in determining the question.
(12)The Secretary of State may from time to time revise the whole or any part of the code and issue the code as revised.
(13)The provisions of this section also apply (with appropriate modifications) to any revision, or proposed revision, of the code.]
Textual Amendments
F4S. 8A inserted (19.2.2001 for specified purposes and otherwise 2.5.2001) by 1999 c. 33, s. 22; S.I. 2001/239, art. 2, Sch.; S.I. 2001/1394, art. 2, Sch.
Marginal Citations
Textual Amendments
F5S. 9 repealed (1.3.2000) by 1999 c. 33, s. 169(1)(3), Sch. 14 paras. 108, 110, Sch. 16; S.I. 2000/464, art. 2, Sch.
Textual Amendments
F6S. 10 repealed (3.4.2000) by 1999 c. 33, s. 169(1)(3), Sch. 14 paras. 108, 111, Sch. 16; S.I. 2000/464, art. 2, Sch.
Textual Amendments
F7S. 11 repealed (3.4.2000) by 1999 c. 33, s. 169(1)(3), Sch. 14 paras. 108, 112, Sch. 16; S.I. 2000/464, art. 2, Sch.