The ongoing scramble at the Home Office to respond to the #Windrush scandal has led to some hastily put together guidance to employers on right to work checks for undocumented Commonwealth citizens.

Background

Restrictions on certain migrants’ right to work in the UK have been a central plank of the government policy since at least 1998, under the then Labour government. The Conservatives have ratcheted up the intensity of these restrictions under Theresa May’s ‘hostile environment‘ policy, which:

  • Doubled the fines for employers to a maximum of £20,000 per illegal worker (up from £10,000);
  • Introduced a new criminal offence for employers of employing a person if they ‘have reasonable cause to believe‘ that person has no right to work, with a sentence of up to 5 years imprisonment (up from 2 years) and/or a fine;
  • Cut down the number and range of acceptable documents that could prove that someone has the right to work.

This has compelled UK employers to perform border enforcement functions as part of their everyday operations.

New guidance to employers

Post-Windrush, the government is seeking to de-escalate some of these measures in particular cases. They have established a team that is attempting to resolve cases according to new guidelines announced in Parliament by former Home Secretary, Amber Rudd (though none of it has the force of law – a point that David Lammy and over 200 other MPs urged on the Prime Minister).

windrush

The new guidance to employers states:

If a job applicant has lived in the UK permanently since before 1973 and has not been abroad for long periods in the last 30 years, they have the legal right to live and work here.

If a job applicant came to the UK after 1 January 1973 but before 1988, then they might not have an automatic right to be here, but they may be allowed to stay here permanently and they do have the right to work.

We will review individual cases and give you the confidence to employ someone who has the legal right to be here but does not have the documents to prove it.

It then repeats Rudd’s bullet point pledges to the House of Commons. However well-intentioned, the impact of the guidance is likely to be limited for 2 reasons.

1. There’s been no change in the law (yet)

Firstly, the law requires employers to get employees or job applicants to provide them with an ‘acceptable document‘ from a specified list that has contracted under the Conservative government.

If a person lacks an acceptable document, they will fail the right to work check. An employer who allows them to work will be employing an illegal worker and will have no defence to a fine of up to £20,000 per worker.

For small businesses and cash-strapped public authorities, the fine is steep enough to have a significant financial impact. Such employers are likely to be very slow to hire or retain an employee without the correct documents. Even if a voice from the Home Office telephone hotline says that ‘they have the legal right to be here‘, that is not a statutory excuse against a civil penalty or defence against criminal prosecution with up to 5 years imprisonment and/or fine.

Experience shows that the bureaucratic bias built into the right to work regime makes certain undocumented persons vulnerable to loss of employment, despite having every right to reside in the UK.

The problem is not limited to Commonwealth citizens – the family members of EEA nationals have been wrongly denied employment (see for example, the case of Okuoimose v City Facilities Management (UK) UKEAT/0192/11/DA where a cleaner at an ASDA store had her employment terminated despite having a right of permanent residence). This can also prove costly for some employers who may be found liable for unfair dismissal or unpaid wages and required to compensate and re-instate former employees.

There has been no change in the law to relax the ordinary requirements of the right to work legislation so as to exempt Windrush-type cases. Employers don’t need ‘confidence‘ to employ someone, they need clear and binding legal exemptions to the full rigour of the hostile environment in these cases.

2. The new guidance is limited to job applicants only

Secondly, the guidance only refers to job applicants. It’s silent on what employers are supposed to do if they already employ undocumented Commonwealth citizens.

There are all manner of circumstances that may trigger a right to work check during someone’s employment and not only at the job application stage.

All it takes is a routine check, workplace audit, transfer of employment from one company to another, and all of a sudden employees face the prospect of losing long-term jobs and employers will be compelled to carry out dismissals to avoid breaching the law.

Take the case of Michael Braithwaite, described as the man living in UK for 56 years who lost his job over lack of immigration papers. The Home Office’s new guidance would not have prevented him from losing his job of over 15 years as a special needs assistant in a primary school. Employers (and employees) can take no comfort from this guidance, which could have brought some welcome clarity to how employers should respond where undocumented Commonwealth citizens are discovered in long-term employment.

Nothing in the new guidance reduces the risk that such persons will be vulnerable to job losses and employers liable for heavy penalties. There is no commitment from the Home Office to relax enforcement of the existing law.

Conclusion

So deep is the Windrush scandal and so profound its implications for UK immigration policy and enforcement that it cannot hope to be resolved by piecemeal statements posted on the gov.uk website.

If the government carries on in this way, it may be a very long time before it contains the the unfolding chaos that has blocked citizens’ from accessing work, accommodation, the NHS, their bank accounts and driving licenses. Each of these sectors needs clear and legally binding government policies that commit to dis-apply the hostile environment in the case of undocumented Commonwealth citizens. Nothing less will do.

 

Posted by Ben Amunwa

Founder and editor of Lawmostly.com. Ben is a business and public law barrister with the 36 Group. He gives expert legal advice on employment, immigration and commercial disputes to a wide range of clients.

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