Mental health law briefing 226 – Crackdown on illegal immigration and employment in the care sector

In his public address on immigration issues in May 2015, the Prime Minister made it clear that the Government is making illegal working and exploitation a focus for a major operation nationwide.

In its analysis of the impact of illegal employment and the underground economy, which it generates, the Immigration Taskforce identified the construction, care and cleaning industries as prime targets.

Working with a number of agencies with a greater emphasis on shared intelligence than has previously been the case, Immigration Enforcement (part of the Immigration Compliance and Enforcement Teams, operating on behalf of the Home Office) is working together with CQC, Local Authorities (as Care Commissioners), HM Revenue & Customs, the Gangmaster’s Licensing Authority, the Employment Agencies Licensing Inspectorate and the Health & Safety Executive to carry out raids aimed at creating a ‘hostile environment’ for illegal migration.

Raids on care homes can be devastating in terms of disruption to good quality continuous care and large financial penalties. Media interest is high as the Government seeks to publicise its zero tolerance approach to this initiative and encouragement to ‘whistleblow’.

The Home Office recognises that this has historically been a difficult area in which to mount enforcement operations as there are continuity of care considerations and it is largely a dispersed workforce so it is easier to evade detection. It has also highlighted the difficulties in the receipt of counterfeit or forged documents, which questions qualifications and represents a safeguarding problem.

Employers must carry out document checks to make it harder for illegal immigrants to obtain employment. Checks should be carried out on all potential employees and this will ensure that all applicants are treated equally and fairly throughout the recruitment process.

The employer has a responsibility to:

  • Obtain the original versions of the acceptable documents
  • Check the document’s validity
  • Copy – make and hold a copy of the documents and the date the check was made

The employer must make additional checks if permission to work is time limited.

The Home Office has produced a guide for carrying out right to work checks correctly and this can be found on the Home Office website at: www.gov.uk/government/publications/right-to-work-checks-employers-guide

Guidance and assistance is also available through the Employer Checking Service at:
www.gov.uk/employee-immigration-employment-status

The Government recognises that illegal immigrants produce false identity documents. Whilst the quality is not usually sufficient to allow entry to UK ports of entry, they are often used to access the labour market and to claim benefits and housing services. Part of the Government’s initiative is to provide forgery training and it has stated its intention to work in partnership with care providers to:

  • Educate and assist – provision of forgery training
  • Prevent illegal working – carrying out compliance visits

The Government will use arrest as a last resort to drive compliance and deter others.

Section 15 of the Immigration, Asylum and Nationality Act 2006 (as amended) imposes a penalty of up to £20,000 per employee found to be illegally working. As well as incurring the civil penalty of £20,000 per worker, the employer can be prosecuted under the same Act and penalties currently include imprisonment for up to two years.

Where an employer is found to have co-operated with the authorities, local managers can issue a ‘no action’ notice and waive the potential £20,000 penalty. However, the employer will have to demonstrate that they have acted in good faith and have diligently followed the ‘obtain, check and copy’ process.

The focus is therefore on cooperation and education of employers.

The draft Immigration Bill introduced on 17 September 2015 proposes radical reform to the migration culture. The maximum custodial sentence on indictment for an offence of employing an illegal worker will be increased from two to five years. Enforcement powers for Immigration Officers will be significantly increased and will give additional powers of search and seizure.

The Immigration Bill is currently at the committee stage in the House of Lords.

It is clear that where employers have taken steps to implement procedures to combat fraud and have complied with the guidance from the Home Office, they are likely to be able to demonstrate that they have a statutory excuse for having employed the illegal worker.

Care home operators should ensure that they have robust processes in place for checking and retaining employee documentation and that checks are carried out in all cases and rigorously audited.

If you require further advice, including training initiatives, please contact:

Julia Appleton
Partner

T: 020 7227 6758
E: julia.appleton@rlb-law.com


Disclaimer

This briefing is for guidance purposes only. RadcliffesLeBrasseur accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.

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