Business Newsletter November 2016

In this addition of the newsletter we discuss:

1.      A company director being disqualified for employing illegal workers.

2.      A man losing his job even though he had indefinite leave to remain in the UK.

3.      The Snoopers Charter


Company director banned for employing illegal workers

The Snoopers charter



The government is much stricter these days with employers who flout the law.

It is illegal under the Immigration Act 2016 to employ an illegal worker. The Immigration and Asylum and Nationality Act 2006 is clear, employers are responsible for compliance with the law and must carry out the necessary checks to ensure that they only employ staff legally entitled to work in the UK.

In November 2015 the Insolvency Service issued a press release advising the public that it had disqualified the director of an Indian restaurant for 6 years for employing illegal workers. The director in question will not be a director of a company for 6 years from 9 November 2016.

The Home Office Immigration Enforcement team turned up at his business premises only to discover that 3 of the staff were not legally entitled to work in the UK. I have advised in a previous newsletter that there will be a fine of £10,000 per illegal employee. So that employer was fined £30,000.

On 2nd December 2016, the company went into liquidation owing creditors £34,296 of which £30,000 had been imposed by the Home Office. It is not rocket science, the Home Office clearly put this company out of businesses because they tried to use cheap labour.

Sue Macleod, Chief Investigator of the Insolvency Service stated “Illegal workers are not protected under employment law, and as well as cheating legitimate job seekers out of employment opportunities, these employers defrauded the tax payer and undercut honest competitors…..The public has a right to expect that those who break the law will face the consequences and this should serve as a warning to other directors tempted to take on illegal staff”[i].

Tips for employers

Do not take the risk.  Ensure all staff are legally entitled to work in the UK.

No sure what you are doing, ask for help.

I have noticed since the draconian immigration law changes, some employers when advertising jobs have specifically stated, do not apply if your immigration papers are not in order. This is not unreasonable; because of the risk of the penalties that may be imposed; however employers must take care not to discriminate against minorities legitimately entitled to work in the UK.

Tip for employees

Sort out your immigration status.

The employment law will not protect you if you are employed illegally.

Your income can be seized as the proceeds of crime. I do have difficulties with this one and believe at some point that it will be challenged in the courts.


Employers fairly dismiss man who had indefinite leave to remain in the UK


Employers fairly dismiss an employee


A Jamaican man is dismissed from the employ of Abellio London Ltd because he could not provide his employers with evidence that he was entitled to live and work in the UK.


The case

In the case of Baker v Abellio London Ltd (2016), Mr Baker, the Claimant, had travelled from Jamaica to the United Kingdom as a child; at the time he was using a Jamaican passport. Mr Baker had lived in the United Kingdom for a long time and had indefinite leave to remain. However he had not left the United Kingdom for a holiday accordingly his Jamaican passport had expired and he had not acquired a UK passport.

Mr Baker was employed by a transport company, Abellio Ltd. The employers were checking the staffs’ immigration status. Mr Baker was asked to provide evidence of his immigration status.  Mr Baker had to prove to his employers that he had a right to live and work in the UK without restriction. Mr Baker did not have a valid Jamaican passport as it had lapsed. Nor did he have a UK passport. Mr Baker could not prove he had indefinite leave to remain, although it had been acquired.

Mr Baker was loaned £350 by his employer to enable him to get the correct legal documents to avoid dismissal. He failed to do so.

Mr Baker acquired the passport as requested by his employers; however he failed to obtain the endorsement as proof of his indefinite leave to remain in the UK.

Mr Baker was not a UK citizen. He was a Jamaican national, even though he had indefinite leave to remain. A passport alone therefore was not sufficient evidence of his rights to live and work in the UK. The endorsement was required.

Mr Baker’s employers had arranged a meeting with him to discuss the matter and warned him that he may be dismissed. Mr Baker failed to attend the meeting.

Mr Baker was ultimately dismissed. He appealed, but the appeal failed. The employers Abellio had followed a fair dismissal procedure; accordingly the dismissal was fair and Mr Baker’s claim for unfair dismissal was rejected.

I understand that 13% of the UK population do not own a passport; however if you are subject to the immigration rules of the UK, you have to comply in order to work.


·        Employer: provided you follow a fair dismissal procedure and the employee has not provided you with valid documents to prove their right to work in the UK, your dismissal would be viewed as fair.

·        Employee: it is a prerequisite that you ensure you have valid evidence of your right to live and work in the UK. Do not let your passport or relevant legal document lapse without obtaining a replacement.


The Snoopers Charter

Snoopers Charter


Very few people have heard me swear, that is because I believe it is not necessary. There are loads of useful, colourful words in the English language that can convey a message without the need for the ‘F’ word! However when I think about this piece of legislation and its true implications for everyone’s privacy or lack thereof. I get extremely angry and want to shout, scream and swear profusely; because whilst the opposition were taking an extensive ‘nap’ the conservative government pushed through one of the most sweeping pieces of surveillance legislation this country has ever seen. The offensive legislation is referred to as the ‘Investigatory Powers Act’ (also known as the ‘snooper’s charter’).

It is fair to say privacy is dead. I know many of you will argue that this piece of legislation is to protect us from terrorists. However the terrorists are not so sophisticated. It is the lack of sophistication and lack of use of technology why the Paris bombers were caught so quickly.

I remember when I first read through aspects of this dreadful legislation I wondered how I was going to handle such snooping.  Good encryption perhaps! Put my laptop in the Fridge[ii].

Paul Bernal, a leading lecturer on Information technology law described the bill as ‘the most invasive surveillance law in democratic history’.

Edward Snowdon, through twitter; “it is the most intrusive and least accountable surveillance regime in the West”.

Apple made a formal submission, specifically on the issue of encryption, to the Investigatory bill’s committee. Apple stated in their submission, “we believe it would be wrong to weaken the security for hundreds of millions of law-abiding customers so that our systems will be weaker for the very few who pose a threat. In this rapid evolving cyber-threat environment, companies should remain free to implement strong encryption to protect customers.” I agree with Apple!

What the new bill allows the authorities to do in summary

1.      Web and phone companies will have to store records[iii] of all our website visits, telephone calls made, what apps use and text messages for 12 months.  There is no need for a warrant to get access to this information. The police just need the authority of someone senior to access the information for their own use. There is just the right of these institutions to hack. This cannot be right!! What will be retained is our metadata says the government and not the content. Metadata the experts advice is more intrusive than content because it allows the police etc., to make cross references.

2.      With this type of surveillance, everything will be under surveillance and privacy as we know it will become a thing of the past. However, some companies have made it clear to the government that they will help customers (like me) to circumvent the new legislation. Thus virtual private networks have been promoting their products to the general public to get override this legislation.

3.      Security services will be able to bug computers and phones upon obtaining a warrant. Companies such as Apple, Samsung etc., will have to assist security by getting rid of any encryption if it is deemed necessary as part of an investigation.

4.      The security services will be able to acquire and analysis bulk data. For example all NHS records. The protection provided to prevent this is called double-lock. A Judge has to approve the warrant to be issued to the security services and a senior minister. My first reading of the original bill was that the Judges powers were weak and ineffective. Therefore there is the real risk that this power will be abused by the security services.

5.      The bill is so outrageous that whilst it provides some protection for sensitive professions, such as my own. Thus in theory it protects the concept of ‘legal professional privilege’. In other words you can speak to me in strict confidence and know that it will stay with me. The harsh reality is that the makes some inroads into the concept of ‘legal professional privilege’. View this as potential the new legislation has created an exceptions. In other words, I may have to convey to the authorities what you have told me. To be honest, if I deemed it as intrusive and unnecessary I will not part with the information.

Regrettably this legislation will become law by the end of the year. There are only two forms of saving grace. First of all experts have stated that it is going to be very expensive for the various companies to retain the records needed by the government for compliance.

The bit that gets me more excited, is the second saving grace. An intelligent person will challenge this piece of legislation and it will be in the European Court of Justice. Thank goodness for ‘crowd funding’. Hopefully it will be with the court before Brexit and it will naturally be struck down by lightening. I cannot see why the Judges would not make a unanimous decision. There is absolutely no way a Judge will approve this nonsense in a democracy. I cannot wait for this to happen as the legislation is just dangerous and open to abuse.


Should you or any person you know have a legal problem relating to employment, immigration or company law issues raised by this article. Please do not hesitate to provide them with our contact details so that we may assistance.




[ii] In a book I read on Snowden, he did this for the purpose of security.

[iii] Internet connection record

Business Newsletter - June 2016


An Immigration Special


On 16 May 2016, the Immigration Act received Royal Assent. Significant changes were made to the law which will come into effect through regulations over the next few months.

This article is intended for organisations that employ staff, business owners, HR Departments, landlords and letting agents.

The purpose of the new Immigration Act is to make life tougher for illegal workers (migrants) and to punish those employers and landlords who do not play by the rules and turn a blind eye.

In this article we will discuss some of the key changes:

1.       Residential Tenancies

2.       The new offence of illegal working

3.       Skilled workers charge

4.       Significant rule changes for migrants

5.       Charging employers recruiting from outside the EEA

6.       Language requirements for the public sector


Residential Tenancies

Immigration Act 2016

Landlords who comply with the law are aware that under the Right to Rent Scheme they are obliged to check the legal status of tenants to ensure that the prospective tenants are in the country legally. This involved checking passports or biometric residence permits and keeping copies. Landlord who fail to make the checks risked a maximum civil penalty of up to £3,000 per illegal migrant tenant.

If a landlord discovers that the tenant is illegally residing in their property. Then must use the law to evict that individual rather than risk a fine.

The government changed the law, so it is now a criminal offence to lease premises to an illegal migrant. The offence is committed if the tenant is disqualified from renting because they do not have the immigration status that allows them to reside and work in the UK legally.

The landlord who knows or has reasonable cause to believe that the person is disqualified because of their immigration status runs the risk of committing an offence under the new Act. The landlord may be fined (there is no upper limit). There is also imprisonment of up to five years.

The legislation also states agents of a landlord may also commit an offence.

It is a defence to show that the landlord had taken reasonable steps to evict the tenant. So on discovering the tenant is not residing in your property legally; you must start eviction proceedings.

This is just a brief summary of the new law and you are respectfully referred to the relevant provisions of the Act.

See s39 of the Immigration Act 2016. 


The new rules regarding illegal working

Employees/ Workers

Employees/ Workers


A.      The offence of Illegal working

The legislation introduces the new offence of illegal working.

A migrant commits the offence of illegal working if that person is subject to immigration control and:-

1.       The person works at a time when they know that they are disqualified to work because of their immigration status; and

2.       The person knows or has reasonable cause to believe that they are disqualified from working because of their immigration status.

A person working refers to any  person who works; whether it is under a contract of employment, an apprenticeship, a contract to personally work, a contract to provide a service, or a contract to supply goods, a member of the crown, a constable, staff in the House of Lords or the House of Commons.

It is fair that the definition of work is very wide and catches almost anything really. The migrant is likely to be at risk in my opinion if they are self-employed under this new legislation.

The individual may be fined and or imprisoned for a term not exceeding 51 months.

See s34 of the Act for further details.

B.      The offence of employing an illegal worker

In terms of the employment market. An employer commits the offence of employing an illegal worker if they employ an employee who is disqualified from employment because of their immigration status; and

The person has reasonable cause to believe the employee is disqualified from employment because of their immigration status.

A person is disqualified from employment by reason of their immigration status if as an adult they:

1.       Have not been granted leave to remain or to enter the UK; or

2.       The person’s leave to enter or remain in the UK is

a.       Invalid; or

b.      Has ceased to have effect (because of curtailment, revocation, cancellation, passage of time or otherwise); or

c.       Is subject to a condition that prevents employment.

‘Reasonable cause to believe’, means that the employer does not need actual knowledge to be guilty   of the crime. Although the government states in their fact sheet that the intention is only to prosecute rogue employers. I am not taking on board what they are saying and would advise employers to take make sure that the migrants they employ are lawfully employed; otherwise they will be an easy target to be fined and prosecuted.

The employer (you) can be imprisoned for up to five years under the new legislation.

Likewise if you’re a rouge landlord and a repeat offender; the new law allows the authorities to close down your business for 48 hours.

What is even more important for you to realise is that the law specified above will take effect on 12 July 2016.

See s35 of the Act.

English language requirement for public sector workers

Public sector employers will have to ensure that staff who interact with the public must speak English. There will be a Code of Practice outlining compliance. This has to be drawn up!

The public authorities must have a complaint procedure in place, so that members of the public can complain.

Public sector workers will include NHS staff; so again I think this new legislation is at risk of being challenged.

See s77 of the Act.

 The Skills Workers Charge

The government has decided that to incentives employers in the UK to use British workers over foreign workers.

In order to actively encourage a change in behaviour the government is going to introduce a charge for employing skill workers from outside the European Economic Area. It is proposed that this will take effect in 2017.

Employers will be charged £1,000 for tier 2 skilled employees from certain skill sets. However there will be a reduction in the charge to £364 in relation to small organisations or charities.

The minimum salary also for employing such a person will increase from £25,000 to £30,000.

There is an exemption to the charge. It will not apply to PHD student jobs; or students who switch from student visas to work visas.

 Specific rule changes for migrants

·         Bank Accounts

Banks and building societies will have to check the status of the account holders in order to ensure that they are entitled to reside in the UK. There will be a charge and this will no doubt be passed on to customers.

Where the bank or building society ascertains that a migrant is not lawfully entitled to reside in the UK. The organisation in question must report potential illegal migrants to the Home Office. The Home Office will probably do their own checks. If they are agree with the bank, then the bank will be ordered to close the account down. Alternatively the Home Office will apply for a freezing order.

See s45 of the Act.

·         Driving Licence

A migrant who is not a lawful resident in the UK, cannot drive under the Act. If the person drives they commits the offence of driving when unlawfully in the UK. The person may receive a penalty and or imprisonment not exceeding 51 weeks. The motor vehicle of such a person may be seized.

I assume that the road insurance of such an individual may be invalid. Hopefully it would still be honoured in relation to any passengers or innocent third party as a result of a road accident.

See s44 of the Act.


This picture was added for a bit of fun!

This picture was added for a bit of fun!


A prudent employer who has read this note will immediately check their right to work procedures. Make amendments to the procedure to ensure compliance with the new law.

It would be sensible to check the immigration status of employees. You could explain to the employees in question that the law has changed and that everything is under reviewed.

For the landlord or agent, check your procedures for determining the status of tenants. If you have not done checks on the immigration status of your tenants for a while; now might be a good time for a review.

Annual checks all around may be prudent as well as checks when you are taking on a new employee or a new tenant.

Employers and landlords however must not forget that the discrimination legislation still exists and they must comply with it.

There is also the human rights legislation which is applicable in this area of law. I suspect lots of cases will be commence as a result of this new legislation.