These regulations placed significant extra responsibility on UK employers to check the identification documents provided by non-EU national employees at the time of recruitment and annually thereafter.  Penalties for transgression were also increased. Employers who even unwittingly hire an illegal immigrant are liable under civil law for a maximum fine of £10,000 per case.

Employers thus have to ascertain which documents can be accepted as proof of the right of applicants to work in the UK.  It is not as simple as viewing one document such as a work permit, passport or residence permit. The UK Borders and Immigration Agency (BIA) lists a number of other documents or combinations of documents which could confer the entitlement of the right to work in the UK.  Copies of any identification documents must also be retained for auditing purposes.  Press reports indicate that the Attorney General failed to take any document copies in the case of Ms Tapui and it was this in particular that rendered her liable for the £5000 fine.

It was also reported that at the time of recruitment, Lady Scotland saw documents that led her to believe that her former employee Ms Tapui was entitled to work in the UK. No details were given, although there was press speculation that the document Ms Tapui provided was a UK marriage certificate which would not on its own have been sufficient.  Much has been made of the fact that income tax and National Insurance (social security) contributions were deducted from Ms Tapui’s wages but the relevant guidance states quite clearly:

“Not all National Insurance number holders will be entitled to work in the United Kingdom. Therefore, the provision of a National Insurance number in isolation is not sufficient to establish the individual’s right to work in the UK. “

However the case illustrates just how easy it is for well meaning employers to fall foul of the legislation unintentionally.  Nor can the employer expect leniency for inadvertently hiring an illegal immigrant.  Since 2008, 2400 employers have been fined a total of £23m for doing so according to the UK newspaper, the Daily Mail.

In one sense this case may serve a useful purpose.  HR Managers and Global Mobility professionals often face challenges in persuading senior managers and executives of the necessity to fully comply with the legislation and invest the necessary resources in the record keeping requirements.

Baroness Scotland’s employment of Ms Tapui graphically illustrates the risks, both financial and reputational, of failing to comply fully with the legislation.

Andrew Harris

Global Mobility Limited