Mark Harper resigned after discovering a cleaner he employed for his flat did not have permission to work in the UK. How could such a mistake have been made (especially by the Minister for Immigration!) and how can employers avoid the same trap?
In April 2007 Mark Harper took on a cleaner, Isabella Acevedo, to work on a self-employed basis. He obtained a copy of her passport and a copy of a letter from the Home Office confirming her right to work in the UK. Mr Harper checked these documents again in 2010 and in 2012. However, it was not until he began to steer the draft Immigration Bill through Parliament in autumn 2013 that he considered checking his cleaner's documents once more. He could not find them and asked for fresh copies.
When Mr Harper asked his officials to confirm everything was in order they returned with bad news. Ironically, the Immigration Minister employed a cleaner who did not have the right to live in the UK.
This prompted Mr Harper to resign, despite insisting he had not broken the law, stating that he had to hold himself "to a higher standard than expected of others".
What is in store for the ex-Immigration Minister?
Mr Harper's 7 year difficulty in establishing his cleaner's lack of leave to remain in the UK is indicative of the burden placed on employers. He checked the cleaner's right to work in the UK on three prior occasions (despite the fact he had no specific legal requirement to do so if she was genuinely self-employed) before instructing his officials to do the same.
So will he be penalised? It is not clear yet whether Mr Harper will have to pay a fine (which can reach up to the maximum £10,000 civil penalty) although Baroness Scotland, former Labour Attorney General, was fined £5,000 in 2009 under similar circumstances. In any event, Mr Harper is likely to have narrowly avoided a higher penalty - his draft order which proposed to increase the maximum civil penalty from £10,000 to £20,000 is being put before Parliament.
Nevertheless, the cause for concern is apparent. Employers bearing the responsibility for checking their own migrant workers appear to have an extensive job on their hands. The substantial obligations, coupled with the threat of fines and even possible imprisonment, are putting pressure on businesses with migrant workers. Employers must be more vigilant and thorough than ever.
How can employers avoid the same fate?
If you are looking to employ migrant workers we advise taking the following steps:
- Ensure you ask for originals of acceptable documents before they start working for you;
- Retain copies of those original documents;
- If that person has a restriction on the work they can do or their hours of work do not employ them in breach of those working conditions;
- If that person has a time limit on their right to work in the UK, repeat the check at least once every 12 months;
- Where a person's leave to remain and right to work in the UK is due to expire within 12 months of the date of your last check then carry out a repeat check at the point of expiry to ascertain whether a person continues to have the right to work for you lawfully.