Employment
I3I7C215Penalty
1
It is contrary to this section to employ an adult subject to immigration control if—
a
he has not been granted leave to enter or remain in the United Kingdom, or
b
his leave to enter or remain in the United Kingdom—
i
is invalid,
ii
has ceased to have effect (whether by reason of curtailment, revocation, cancellation, passage of time or otherwise), or
iii
is subject to a condition preventing him from accepting the employment.
2
The Secretary of State may give an employer who acts contrary to this section a notice requiring him to pay a penalty of a specified amount not exceeding the prescribed maximum.
3
An employer is excused from paying a penalty if he shows that he complied with any prescribed requirements in relation to the employment.
4
But the excuse in subsection (3) shall not apply to an employer who knew, at any time during the period of the employment, that it was contrary to this section.
5
The Secretary of State may give a penalty notice without having established whether subsection (3) applies.
6
A penalty notice must—
a
state why the Secretary of State thinks the employer is liable to the penalty,
b
state the amount of the penalty,
c
specify a date, at least 28 days after the date specified in the notice as the date on which it is given, before which the penalty must be paid,
d
specify how the penalty must be paid,
e
explain how the employer may object to the penalty F3or make an appeal against it, and
f
explain how the Secretary of State may enforce the penalty.
7
An order prescribing requirements for the purposes of subsection (3) may, in particular—
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 verify, retain, copy or record the content of a document produced to him in accordance with the order;
d
require action to be taken before employment begins;
e
require action to be taken at specified intervals or on specified occasions during the course of employment.
I4I816Objection
1
This section applies where an employer to whom a penalty notice is given objects on the ground that—
a
he is not liable to the imposition of a penalty,
b
he is excused payment by virtue of section 15(3), or
c
the amount of the penalty is too high.
2
The employer may give a notice of objection to the Secretary of State.
3
A notice of objection must—
a
be in writing,
b
give the objector's reasons,
c
be given in the prescribed manner, and
d
be given before the end of the prescribed period.
4
Where the Secretary of State receives a notice of objection to a penalty he shall consider it and—
a
cancel the penalty,
b
reduce the penalty,
c
increase the penalty, or
d
determine to take no action.
5
Where the Secretary of State considers a notice of objection he shall—
a
have regard to the code of practice under section 19 (in so far as the objection relates to the amount of the penalty),
b
inform the objector of his decision before the end of the prescribed period or such longer period as he may agree with the objector,
c
if he increases the penalty, issue a new penalty notice under section 15, and
d
if he reduces the penalty, notify the objector of the reduced amount.
I917Appeal
1
An employer to whom a penalty notice is given may appeal to the court on the ground that—
a
he is not liable to the imposition of a penalty,
b
he is excused payment by virtue of section 15(3), or
c
the amount of the penalty is too high.
2
The court may—
a
allow the appeal and cancel the penalty,
b
allow the appeal and reduce the penalty, or
c
dismiss the appeal.
3
An appeal shall be a re-hearing of the Secretary of State's decision to impose a penalty and shall be determined having regard to—
a
the code of practice under section 19 that has effect at the time of the appeal (in so far as the appeal relates to the amount of the penalty), and
b
any other matters which the court thinks relevant (which may include matters of which the Secretary of State was unaware);
and this subsection has effect despite any provision of rules of court.
F44A
An appeal may be brought only if the employer has given a notice of objection under section 16 and the Secretary of State—
a
has determined the objection by issuing to the employer the penalty notice (as a result of increasing the penalty under section 16(4)(c)),
b
has determined the objection by—
i
reducing the penalty under section 16(4)(b), or
ii
taking no action under section 16(4)(d), or
c
has not informed the employer of a decision before the end of the period that applies for the purposes of section 16(5)(b).
4B
An appeal must be brought within the period of 28 days beginning with the relevant date.
4C
Where the appeal is brought under subsection (4A)(a), the relevant date is the date specified in the penalty notice issued in accordance with section 16(5)(c) as the date on which it is given.
4D
Where the appeal is brought under subsection (4A)(b), the relevant date is the date specified in the notice informing the employer of the decision for the purposes of section 16(5)(b) as the date on which it is given.
4E
Where the appeal is brought under subsection (4A)(c), the relevant date is the date on which the period that applies for the purposes of section 16(5)(b) ends.
6
In this section “the court” means—
a
where the employer has his principal place of business in England and Wales, F2the county court,
b
where the employer has his principal place of business in Scotland, the sheriff, and
c
where the employer has his principal place of business in Northern Ireland, a county court.
I1018Enforcement
F51
This section applies where a sum is payable to the Secretary of State as a penalty under section 15.
1A
In England and Wales the penalty is recoverable as if it were payable under an order of the county court.
1B
In Scotland, the penalty may be enforced in the same manner as an extract registered decree arbitral bearing a warrant for execution issued by the sheriff court of any sheriffdom in Scotland.
1C
In Northern Ireland the penalty is recoverable as if it were payable under an order of a county court in Northern Ireland.
1D
Where action is taken under this section for the recovery of a sum payable as a penalty under section 15, the penalty is—
a
in relation to England and Wales, to be treated for the purposes of section 98 of the Courts Act 2003 (register of judgments and orders etc ) as if it were a judgment entered in the county court;
b
in relation to Northern Ireland, to be treated for the purposes of Article 116 of the Judgments Enforcement (Northern Ireland) Order 1981 ( S.I. 1981/226 (N.I. 6)) (register of judgments) as if it were a judgment in respect of which an application has been accepted under Article 22 or 23(1) of that Order.
3
Money paid to the Secretary of State by way of penalty shall be paid into the Consolidated Fund.
I119Code of practice
1
The Secretary of State shall issue a code of practice specifying factors to be considered by him in determining the amount of a penalty imposed under section 15.
2
The code—
a
shall not be issued unless a draft has been laid before Parliament, and
b
shall come into force in accordance with provision made by order of the Secretary of State.
3
The Secretary of State shall from time to time review the code and may revise and re-issue it following a review; and a reference in this section to the code includes a reference to the code as revised.
I520Orders
1
An order of the Secretary of State under section 15, 16 or 19—
a
may make provision which applies generally or only in specified circumstances,
b
may make different provision for different circumstances,
c
may include transitional or incidental provision, and
d
shall be made by statutory instrument.
2
An order under section 15(2) may not be made unless a draft has been laid before and approved by resolution of each House of Parliament.
3
Any other order shall be subject to annulment in pursuance of a resolution of either House of Parliament.
I1121Offence
1
A person commits an offence if he employs another (“the employee”) knowing that the employee is F7disqualified from employment by reason of the employee's immigration status.
F61A
A person commits an offence if the person—
a
employs another person (“the employee”) who is disqualified from employment by reason of the employee's immigration status, and
b
has reasonable cause to believe that the employee is disqualified from employment by reason of the employee's immigration status.
1B
For the purposes of subsections (1) and (1A) a person is disqualified from employment by reason of the person's immigration status if the person is an adult subject to immigration control and—
a
the person has not been granted leave to enter or remain in the United Kingdom, or
b
the person's leave to enter or remain in the United Kingdom—
i
is invalid,
ii
has ceased to have effect (whether by reason of curtailment, revocation, cancellation, passage of time or otherwise), or
iii
is subject to a condition preventing the person from accepting the employment.
2
A person guilty of an offence under this section shall be liable—
a
on conviction on indictment—
i
to imprisonment for a term not exceeding F8five years,
ii
to a fine, or
iii
to both, or
b
on summary conviction—
i
to imprisonment for a term not exceeding F18the general limit in a magistrates’ court in England and Wales or 6 months in Scotland or Northern Ireland,
ii
to a fine not exceeding the statutory maximum, or
iii
to both.
3
An offence under this section shall be treated as—
a
a relevant offence for the purpose of sections 28B and 28D of the Immigration Act 1971 (c. 77) (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).
F193A
Proceedings for an offence under this section that is committed in the territorial sea adjacent to the United Kingdom may be taken, and the offence may for all incidental purposes be treated as having been committed, in any place in the United Kingdom.
3B
Section 3 of the Territorial Waters Jurisdiction Act 1878 (consent of Secretary of State for certain prosecutions) does not apply to proceedings for an offence under this section.
4
I1222Offence: bodies corporate, &c.
1
For the purposes of section 21(1) a body (whether corporate or not) shall be treated as knowing a fact about an employee if a person who has responsibility within the body for an aspect of the employment knows the fact.
F91A
For the purposes of section 21(1A) a body (whether corporate or not) shall be treated as having reasonable cause to believe a fact about an employee if a person who has responsibility within the body for an aspect of the employment has reasonable cause to believe that fact.
2
If an offence under section 21(1) F10or (1A) is committed by a body corporate with the consent or connivance of an officer of the body, the officer, as well as the body, shall be treated as having committed the offence.
3
In subsection (2) a reference to an officer of a body includes a reference to—
a
a director, manager or secretary,
b
a person purporting to act as a director, manager or secretary, and
c
if the affairs of the body are managed by its members, a member.
4
Where an offence under section 21(1) F11or (1A) is committed by a partnership (whether or not a limited partnership) subsection (2) above shall have effect, but as if a reference to an officer of the body were a reference to—
a
a partner, and
b
a person purporting to act as a partner.
I223Discrimination: code of practice
1
The Secretary of State shall issue a code of practice specifying what an employer should or should not do in order to ensure that, while avoiding liability to a penalty under section 15 and while avoiding the commission of an offence under section 21, he also avoids contravening—
a
F1the Equality Act 2010, so far as relating to race, or
b
the Race Relations (Northern Ireland) Order 1997 (S.I. 869 (N.I. 6)).
2
Before issuing the code the Secretary of State shall—
a
consult—
i
the Commission for Equality and Human Rights,
ii
the Equality Commission for Northern Ireland,
iii
such bodies representing employers as he thinks appropriate, and
iv
such bodies representing workers as he thinks appropriate,
b
publish a draft code (after that consultation),
c
consider any representations made about the published draft, and
d
lay a draft code before Parliament (after considering representations under paragraph (c) and with or without modifications to reflect the representations).
3
The code shall come into force in accordance with provision made by order of the Secretary of State; and an order—
a
may include transitional provision,
b
shall be made by statutory instrument, and
c
shall be subject to annulment in pursuance of a resolution of either House of Parliament.
4
A breach of the code—
a
shall not make a person liable to civil or criminal proceedings, but
b
may be taken into account by a court or tribunal.
5
The Secretary of State shall from time to time review the code and may revise and re-issue it following a review; and a reference in this section to the code includes a reference to the code as revised.
6
Until the dissolution of the Commission for Racial Equality, the reference in subsection (2)(a)(i) to the Commission for Equality and Human Rights shall be treated as a reference to the Commission for Racial Equality.
I1324F13 Immigration bail
Where a person is at large in the United Kingdom by virtue of F14a grant of immigration bail to the person under Schedule 10 to the Immigration Act 2016 —
a
he shall be treated for the purposes of sections 15(1) and F1221(1B) as if he had been granted leave to enter the United Kingdom, and
b
any restriction as to employment imposed under F15that Schedule as a condition of that person's immigration bail shall be treated for those purposes as a condition of leave.
I6C125Interpretation
In sections 15 to 24—
a
“adult” means a person who has attained the age of 16,
b
a reference to employment is to employment under a contract of service or apprenticeship, whether express or implied and whether oral or written,
c
a person is subject to immigration control if under the Immigration Act 1971 he requires leave to enter or remain in the United Kingdom, and
d
“prescribed” means prescribed by order of the Secretary of State.
I1426Repeal
Sections 8 and 8A of the Asylum and Immigration Act 1996 (c. 49) (restrictions on employment) shall cease to have effect.