Professional Documents
Culture Documents
Relevant Legislation
The Immigration, Asylum and Nationality Act 2006 (the "the 2006 Act”1)
Background
1. The UKBA illegal working regimes tackling illegal working are provided for in
the Immigration and Nationality Act 2006 (the 2006 Act) which came into force
on 29 February 2008. Prior to this, illegal working was covered by the Asylum
and Immigration Act 1996.
2. The scheme creates both civil and criminal liability and focuses on the
„employer‟ rather than the individual who is working without
permission/clearance.
3. In respect of both types of liability, it should be noted that the provisions in the
2006 Act only concern persons subject to immigration control, which in each
case means a person who under the Immigration Act 1971 requires leave to enter
or remain in the United Kingdom. 2
Outline of Regime
1
Sections 15-25.
2
EEA nationals are not included and are dealt with separately in the Accession (Immigration and
Worker Registration) Regulations 20042 and the Accession (Immigration and Worker Authorisation)
Regulations 20062 (together, the “EEA Regulations”).
1
5. A defence (or „excuse‟) to any Notice of Potential Liability (NOPL) can be
relied upon by the employer if he/she can demonstrate they took steps before the
employment commenced (and in certain instances at 12 monthly intervals
thereafter) to confirm the employee was being employed lawfully. Such
measures include checking and copying certain specified documents relating to
the employee.
7. The regime has now been in place for almost two years. It‟s possible to identify
a number of legal issues that have arisen during this time:
3
See separate note on Civil Penalty Regime and compatibility with Article 6 ECHR.
2
Illegal working: Criminal Liability
10. An offence under this section is treated as a relevant offence for the purposes of
sections 28B & D of the IA 1971 (search, entry and arrest) and an offence under
Part III of the 1971 Act (Criminal Proceedings) for the purposes of sections
28(4), 28E, 28G and 28H (search after arrest)- s.21(3) IANA 2006
11. Powers of arrest with warrant and search for personnel records as contained in
s.8 AIA 1996 granted for the purposes of s21 of IANA 2006 – ss.27 - 28 UK
Borders Act 2007 („UKBA 2007‟)
12. For the purposes of s.21(1) a body shall be treated as knowing a fact about an
employee if a person who has responsibility within the body for that aspect of
the employment knows the fact - s.22(1) IANA 2006
13. If an offence under section 21(1) 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 an offence. A reference to an officer or
body includes a reference to a director, manager or secretary, a person
purporting to act as such and if the affairs of the body are managed by its
members, its members. Same in relation to partnerships - s.22 (2)-(4)) IANA
2006
4
s.21(2) IANA 2006
3
Operational/Policy Guidance
02/11/2009
5
Pursuant to section 19 of the 2006 Act
6
Pursuant to section 23 of the 2006 Act.