Immigration (Restrictions on Employment) Order 2007

Current version
As made

Current version (as amended)

The Immigration (Restrictions on Employment) Order 2007, as it currently stands (that is — as amended), is as follows:

Statutory Instruments

2007 N^o 3290

IMMIGRATION

The Immigration (Restrictions on Employment) Order 2007

Made

15^th November 2007

Laid before Parliament

22^nd November 2007

Coming into force

29^th February 2008

The Secretary of State makes the following order, in exercise of the powers conferred by sections 15(3) , 15(7) , 16(3) , 16(5) , 19(2) , 23(3) and 25(d) of the Immigration, Asylum and Nationality Act 2006 .
In accordance with section 19(2)(a) of that Act a draft code of practice specifying factors to be considered by the Secretary of State in determining the amount of a penalty imposed under section 15 has been laid before Parliament.
In accordance with section 23(2) of that Act the Secretary of State has consulted those bodies specified in section 23(2)(a) about a code specifying what an employer should or should not do to avoid contravention of the Race Relations Act 1976 or the Race Relations (Northern Ireland) Order 1997 , published a draft code, considered representations made about the published draft code and has laid a draft code before Parliament, after modifying the code to reflect the representations.

Citation, commencement and interpretation

1.
This order may be cited as the Immigration (Restrictions on Employment) Order 2007 and shall come into force on 29 February 2008.

2.
In this order —

“the 2006 Act” means the Immigration, Asylum and Nationality Act 2006 ;
“document” means an original document; and
[ “employee”, except in articles 4(3) and 4B(3), includes a reference to a prospective employee. ]¹

Excuse from paying civil penalty

3.  (1)
[Subject to article 5,]² an employer is excused from paying a penalty under section 15 of the 2006 Act if —

(a)  the employee […]³ produces to the employer any of the documents or combinations of documents described in list A in the Schedule to this Order; and
(b)  the employer complies with the requirements set out in article 6 of this order.

(2)
[…]⁴

[ 4.  (1)
To the extent provided for by paragraphs (2) and (3) an employer is excused from paying a penalty under section 15 of the 2006 Act if —

(a)  the employee […]⁶ produces to the employer any of the documents or combination of documents described in part 1 of list B in the Schedule to this Order; and
(b)  the employer complies with the requirements set out in article 6 of this Order.

(2)
Subject to article 5 an employer will be excused under this article from paying a penalty under section 15 of the 2006 Act for the period for which a document produced under paragraph (1)(a) provides that the employment is permitted.

(3)
If, on the date on which the period specified in paragraph (2) expires, the employer is reasonably satisfied that the employee has an outstanding application to vary his leave to enter or remain in the United Kingdom or the employee has an appeal [or administrative review]⁷ pending against a decision on that application, the employer will be excused from paying that penalty for a further period beginning with the date on which the period specified in paragraph (2) expires and ending —

(a)  after 28 days, or
(b)  if earlier, on the date on which the Secretary of State gives the employer written notice that the employee does not have the right to undertake the employment in question.

4A.  (1)
To the extent provided for by paragraph (2) an employer is excused from paying a penalty under section 15 of the 2006 Act if —

(a)
either —

(i)  the employee […]⁸ produces to the employer a document described in paragraph 1 or 2 of part 2 of list B in the Schedule to this Order and the employer obtains a Positive Verification Notice issued by the Home Office Employer Checking Service which indicates that the person named in it is allowed to stay in the United Kingdom and is allowed to do the work in question; or
(ii)  the employer obtains a Positive Verification Notice issued by the Home Office Employer Checking Service which indicates that the person named in it is allowed to stay in the United Kingdom and is allowed to do the work in question;

and

(b)  the employer complies with the requirements set out in article 6 of this Order.

(2)
Subject to article 5 an employer will be excused under this article from paying a penalty under section 15 of the 2006 Act for a period of six months, beginning with the date of the Positive Verification Notice obtained under paragraph (1)(a). ]⁵

[ Excusal from paying civil penalty: Home Office online right to work checking service

4B.  (1)
To the extent provided for by paragraphs (2) and (3), an employer is excused from paying a penalty under section 15 of the 2006 Act if —

(a)  the employer uses the Home Office online right to work checking service in respect of an employee;
(b)  the online right to work check confirms that the employee named in it is allowed to work in the United Kingdom and is allowed to do the work in question;
(c)  the employer has satisfied himself that any photograph on the online right to work check is of the employee;
(d)  the employer retains a clear copy of the online right to work check for a period of not less than two years after the employment has come to an end; and
(e)  the employer complies, if applicable, with the requirement in article 6(2).

(2)
Subject to article 5, an employer will be excused under this article from paying a penalty under section 15 of the 2006 Act for the period for which the online right to work check confirmed that the person named in it was permitted to carry out the work in question.

(3)
If, on the date on which the period specified in paragraph (2) expires, the employer is reasonably satisfied that the employee has an outstanding application to vary his leave to enter or remain in the United Kingdom or the employee has an appeal or administrative review pending against a decision on that application, the employer will be excused from paying that penalty for a further period beginning with the date on which the period specified in paragraph (2) expires and ending —

(a)  after 28 days, or
(b)  if earlier, on the date on which the Secretary of State gives the employer written notice that the employee does not have the right to undertake the employment in question.

(4)
In this article —

“online right to work check” means the response generated by the Home Office online right to work checking service in relation to a person;
“Home Office online right to work checking service” means the electronic system allowing employers to check whether a person is allowed to work in the United Kingdom and, if so, the nature of any restrictions on that person’s right to do so. ]⁹

5.
An employer is excused from paying a penalty under section 15 of the 2006 Act by virtue of [article 3(1)]¹⁰ [, article 4(2)[, article 4A(2) or article 4B(2)]¹² ]¹¹ [only if the employee produces the relevant documents to the employer[, or the employer obtains an online right to work check which confirms that the employee named in it is allowed to work in the United Kingdom and is allowed to do the work in question,]¹⁴ prior to the commencement of employment]¹³.

[6.  (1)]¹⁵
The requirements in relation to any documents or combinations of documents produced by an employee pursuant to [article 3, 4 or 4A]¹⁶ of this order are that —

(a)  the employer takes all reasonable steps to check the validity of the document [and retains a record of the date on which any check was made]¹⁷;
(b)  the [clear]¹⁸ copy or copies are retained securely by the employer for a period of not less than two years after the employment has come to an end;
(c)  if a document contains a photograph, the employer has satisfied himself that the photograph is of the […]¹⁹ employee;
(d)  if a document contains a date of birth, the employer has satisfied himself that the date of birth is consistent with the appearance of the […]¹⁹ employee;
(e)  the employer takes all other reasonable steps to check that the […]¹⁹ employee is the rightful owner of the document;
(f)  if the document is not a passport […]²⁰ the employer retains a [clear]¹⁹ copy of whole of the document in a format which cannot be subsequently altered; […]²¹
[ (g)
if the document is a passport […]²³, the employer retains a [clear]¹⁹ copy of the following pages of that document in a format which cannot be subsequently altered —

(i)  […]²⁴
(ii)  any page containing the holder’s personal details including nationality;
(iii)  any page containing the holder’s photograph;
(iv)  any page containing the holder’s signature;
(v)  any page containing the date of expiry; and
(vi)  any page containing information indicating the holder has an entitlement to enter or remain in the U.K. and undertake the work in question;

and

(h)  […]²⁵ ]²²

[ (2)
A further requirement, if the […]²⁷ employee is a student who has permission to work for a limited number of hours per week during term time whilst studying in the United Kingdom, is that the employer must obtain and retain details of the term and vacation dates of the course that the […]²⁷ employee is undertaking. ]²⁶

7.
Nothing in this Order permits employers to retain documents produced by an employee [or the Home Office]²⁸ for the purposes of [article 3, [4, 4A or 4B]³⁰]²⁹ for any period longer than is necessary for the purposes of ensuring compliance with article 6.

Objections

8.
The manner prescribed in which the notice of objection must be given is that it must contain —

(a)  the reference number of the notice given under section 15(2) of the 2006 Act;
(b)  the name and contact address of the employer;
(c)  the name and contact address of the employee in respect of whom the penalty was issued;
(d)  the full grounds of objection;
(e)  where the employer requests permission to pay by instalments, full details of the employer’s ability to pay the penalty;
(f)  confirmation and details of any appeal made by the employer to a County Court or Sheriff Court on the basis that the employer is not liable to the penalty, he is excused payment by virtue of section 15(3) of the 2006 Act, or that the amount of the penalty is too high; and
(g)  any documents to be relied upon in support of the objection.

9.
The prescribed period within which a notice of objection must be given for the purposes of section 16(3)(d) of the 2006 Act is 28 days, beginning with the date specified in the penalty notice as the date upon which it is given.

10.
The period prescribed for the purposes of section 16(5)(b) of the 2006 Act within which the Secretary of State must inform the objector of his decision is 28 days, beginning with the date on which the notice of objection was given to the Secretary of State.

Codes of Practice

11.
The code of practice entitled “Civil Penalties for Employers”, issued by the Secretary of State under section 19(1) of the 2006 Act shall come into force on 29 February 2008.

12.
The code of practice entitled “Guidance for Employers on the Avoidance of Unlawful Discrimination in Employment Practice While Seeking to Prevent Illegal Working”, issued by the Secretary of State under section 23(1) of the 2006 Act shall come into force on 29 February 2008.

Articles 3, 4 and 4A

Schedule

List A

1.
[…]³¹ A passport showing that the holder, or a person named in the passport as the child of the holder, is a British citizen or a citizen of the United Kingdom and Colonies having the right of abode in the United Kingdom.

[ 2.
A passport or national identity card showing that the holder, or a person named in the passport as the child of the holder, is a national of a European Economic Area country or Switzerland. ]³²

3.
A […]³³ registration certificate or document certifying […]³⁴ permanent residence issued by the Home Office […]³⁵ to a national of a European Economic Area country or Switzerland.

4.
A permanent residence card issued by the Home Office […]³⁵ to the family member of a national of a European Economic Area country or Switzerland.

5.
[A current biometric immigration document issued by the Home Office]³⁶ to the holder which indicates that the person named in it is allowed to stay indefinitely in the United Kingdom, or has no time limit on their stay in the United Kingdom.

6.
[A current passport]³⁷ endorsed to show that the holder is exempt from immigration control, is allowed to stay indefinitely in the United Kingdom, has the right of abode in the United Kingdom, or has no time limit on their stay in the United Kingdom.

7.
[A current immigration status document]³⁸ issued by the Home Office […]³⁵ to the holder with an endorsement indicating that the person named in it is allowed to stay indefinitely in the United Kingdom or has no time limit on their stay in the United Kingdom, when produced in combination with an official document giving the person’s permanent National Insurance Number and their name issued by a Government agency or a previous employer.

8.
A […]³⁹ birth certificate issued in the United Kingdom […]³⁹, when produced in combination with an official document giving the person’s permanent National Insurance Number and their name issued by a Government agency or a previous employer.

9.
[An]⁴⁰ adoption certificate issued in the United Kingdom […]⁴¹, when produced in combination with an official document giving the person’s permanent National Insurance Number and their name issued by a Government agency or a previous employer.

10.
A birth certificate issued in the Channel Islands, the Isle of Man or Ireland, when produced in combination with an official document giving the person’s permanent National Insurance Number and their name issued by a Government agency or a previous employer.

11.
An adoption certificate issued in the Channel Islands, the Isle of Man or Ireland, when produced in combination with an official document giving the person’s permanent National Insurance Number and their name issued by a Government agency or a previous employer.

12.
A certificate of registration or naturalisation as a British citizen, when produced in combination with an official document giving the person’s permanent National Insurance Number and their name issued by a Government agency or a previous employer.

13.
[…]⁴²

[ List B — Part 1

1.
A current passport endorsed to show that the holder is allowed to stay in the United Kingdom and is allowed to do the type of work in question.

2.
A current biometric immigration document issued by the Home Office to the holder which indicates that the person named in it is allowed to stay in the United Kingdom and is allowed to do the work in question.

3.
A current residence card (including an accession residence card or a derivative residence card) issued by the Home Office to a non-European Economic Area national who is a family member of a national of a European Economic Area country or Switzerland or who has a derivative right of residence.

4.
A current immigration status document containing a photograph issued by the Home Office to the holder with an endorsement indicating that the person named in it is allowed to stay in the United Kingdom and is allowed to do the work in question, when produced in combination with an official document giving the person’s permanent National Insurance Number and their name issued by a Government agency or previous employer.

List B — Part 2

1.
A certificate of application issued by the Home Office under [regulation 18(3) or 20(2) of the Immigration (European Economic Area) Regulations 2016 ]⁴⁴, to a family member of a national of a European Economic Area country or Switzerland stating that the holder is permitted to take employment which is less than 6 months old.

2.
An application registration card issued by the Home Office stating that the holder is permitted to take the employment in question. ]⁴³

Liam Byrne
Minister of State

Home Office
15^th November 2007

Explanatory Note

(This note is not part of the Order)

Article 3 together with the Schedule describe how an employer will be excused from paying a penalty under section 15 of the Immigration, Asylum and Nationality Act 2006 for either the duration or the remainder of the employment.
Article 4 together with the Schedule describe how an employer will be excused from paying a penalty under section 15 of the 2006 Act for limited periods.
Article 5 together with the Schedule provides that an employer is only excused from paying a penalty if documents have been provided prior to the commencement of employment.
Article 6 sets out requirements on an employer in relation to documents obtained by them from an employee.
Article 7 prevents employers from retaining documents for any period longer than is necessary for the purposes of satisfying article 6.
Article 8 prescribes the manner in which an objection against a penalty must be made.
Article 9 prescribes the period in which an objection must be made.
Article 10 prescribes the period within which the Secretary of State must inform the objector of her decision.
Article 11 brings into force the code of practice specifying factors to be considered by the Secretary of State in determining the amount of a penalty.
Article 12 brings into force the code of practice specifying what an employer should or should not do in order to ensure that, while avoiding liability to a penalty, and while avoiding committing an offence, he also avoids contravening race relations legislation.

Amendments

^ 1 Text inserted on 28^th January 2019 by article 2(2) of the Immigration (Restrictions on Employment) (Code of Practice and Miscellaneous Amendments) Order 2018
^ 2 Text substituted on 28^th January 2019 by article 2(3)(a) of the Immigration (Restrictions on Employment) (Code of Practice and Miscellaneous Amendments) Order 2018
^ 3 Text omitted on 28^th January 2019 by article 2(3)(b) of the Immigration (Restrictions on Employment) (Code of Practice and Miscellaneous Amendments) Order 2018
^ 4 Text omitted on 28^th January 2019 by article 2(3)(c) of the Immigration (Restrictions on Employment) (Code of Practice and Miscellaneous Amendments) Order 2018
^ 5 Text substituted on 16^th May 2014 by article 3 of the Immigration (Restrictions on Employment) (Codes of Practice and Amendment) Order 2014
^ 6 Text omitted on 28^th January 2019 by article 2(4)(a) of the Immigration (Restrictions on Employment) (Code of Practice and Miscellaneous Amendments) Order 2018
^ 7 Text inserted on 28^th January 2019 by article 2(4)(b) of the Immigration (Restrictions on Employment) (Code of Practice and Miscellaneous Amendments) Order 2018
^ 8 Text omitted on 28^th January 2019 by article 2(5) of the Immigration (Restrictions on Employment) (Code of Practice and Miscellaneous Amendments) Order 2018
^ 9 Text inserted on 28^th January 2019 by article 2(6) of the Immigration (Restrictions on Employment) (Code of Practice and Miscellaneous Amendments) Order 2018
^ 10 Text substituted on 28^th January 2019 by article 2(7)(a) of the Immigration (Restrictions on Employment) (Code of Practice and Miscellaneous Amendments) Order 2018
^ 11 Text substituted on 16^th May 2014 by article 4(a) of the Immigration (Restrictions on Employment) (Codes of Practice and Amendment) Order 2014
^ 12 Text substituted on 28^th January 2019 by article 2(7)(b) of the Immigration (Restrictions on Employment) (Code of Practice and Miscellaneous Amendments) Order 2018
^ 13 Text substituted on 16^th May 2014 by article 4(b) of the Immigration (Restrictions on Employment) (Codes of Practice and Amendment) Order 2014
^ 14 Text inserted on 28^th January 2019 by article 2(7)(c) of the Immigration (Restrictions on Employment) (Code of Practice and Miscellaneous Amendments) Order 2018
^ 15 Article renumbered on 16^th May 2014 by article 5(1) of the Immigration (Restrictions on Employment) (Codes of Practice and Amendment) Order 2014
^ 16 Text substituted on 16^th May 2014 by article 5(2)(a) of the Immigration (Restrictions on Employment) (Codes of Practice and Amendment) Order 2014
^ 17 Text inserted on 16^th May 2014 by article 5(2)(b) of the Immigration (Restrictions on Employment) (Codes of Practice and Amendment) Order 2014
^ 18 Text inserted on 28^th January 2019 by article 2(8)(a)(i) of the Immigration (Restrictions on Employment) (Code of Practice and Miscellaneous Amendments) Order 2018
^ 19 Text omitted on 28^th January 2019 by article 2(8)(a)(ii) of the Immigration (Restrictions on Employment) (Code of Practice and Miscellaneous Amendments) Order 2018
^ 20 Text omitted on 16^th May 2014 by article 5(2)(c) of the Immigration (Restrictions on Employment) (Codes of Practice and Amendment) Order 2014
^ 21 Text omitted on 24^th November 2009 by article 3(a) of the Immigration (Restrictions on Employment) (Amendment) Order 2009
^ 22 Text substituted on 24^th November 2009 by article 3(b) of the Immigration (Restrictions on Employment) (Amendment) Order 2009
^ 23 Text omitted on 16^th May 2014 by article 5(2)(d) of the Immigration (Restrictions on Employment) (Codes of Practice and Amendment) Order 2014
^ 24 Text omitted on 16^th May 2014 by article 5(2)(e) of the Immigration (Restrictions on Employment) (Codes of Practice and Amendment) Order 2014
^ 25 Text omitted on 16^th May 2014 by article 5(2)(f) of the Immigration (Restrictions on Employment) (Codes of Practice and Amendment) Order 2014
^ 26 Text inserted on 16^th May 2014 by article 5(2)(g) of the Immigration (Restrictions on Employment) (Codes of Practice and Amendment) Order 2014
^ 27 Text omitted on 28^th January 2019 by article 2(8)(b) of the Immigration (Restrictions on Employment) (Code of Practice and Miscellaneous Amendments) Order 2018
^ 28 Text inserted on 28^th January 2019 by article 2(9)(a) of the Immigration (Restrictions on Employment) (Code of Practice and Miscellaneous Amendments) Order 2018
^ 29 Text substituted on 16^th May 2014 by article 6 of the Immigration (Restrictions on Employment) (Codes of Practice and Amendment) Order 2014
^ 30 Text substituted on 28^th January 2019 by article 2(9)(b) of the Immigration (Restrictions on Employment) (Code of Practice and Miscellaneous Amendments) Order 2018
^ 31 Text inserted on 24^th November 2009 by article 4(a) of the Immigration (Restrictions on Employment) (Amendment) Order 2009 and then omitted on 16^th May 2014 by article 8(a) of the Immigration (Restrictions on Employment) (Codes of Practice and Amendment) Order 2014
^ 32 Text substituted on 24^th November 2009 by article 4(b) of the Immigration (Restrictions on Employment) (Amendment) Order 2009 and then substituted again on 16^th May 2014 by article 8(b) of the Immigration (Restrictions on Employment) (Codes of Practice and Amendment) Order 2014
^ 33 Text omitted on 16^th May 2014 by article 8(c)(i) of the Immigration (Restrictions on Employment) (Codes of Practice and Amendment) Order 2014
^ 34 Text omitted on 16^th May 2014 by article 8(c)(ii) of the Immigration (Restrictions on Employment) (Codes of Practice and Amendment) Order 2014
^ 35 Text omitted on 16^th May 2014 by article 7 of the Immigration (Restrictions on Employment) (Codes of Practice and Amendment) Order 2014
^ 36 Text substituted on 16^th May 2014 by article 8(d) of the Immigration (Restrictions on Employment) (Codes of Practice and Amendment) Order 2014
^ 37 Text substituted on 16^th May 2014 by article 8(e) of the Immigration (Restrictions on Employment) (Codes of Practice and Amendment) Order 2014
^ 38 Text substituted on 16^th May 2014 by article 8(f) of the Immigration (Restrictions on Employment) (Codes of Practice and Amendment) Order 2014
^ 39 Text omitted on 28^th January 2019 by article 2(10)(a) of the Immigration (Restrictions on Employment) (Code of Practice and Miscellaneous Amendments) Order 2018
^ 40 Text substituted on 28^th January 2019 by article 2(10)(b)(i) of the Immigration (Restrictions on Employment) (Code of Practice and Miscellaneous Amendments) Order 2018
^ 41 Text omitted on 28^th January 2019 by article 2(10)(b)(ii) of the Immigration (Restrictions on Employment) (Code of Practice and Miscellaneous Amendments) Order 2018
^ 42 Text omitted on 16^th May 2014 by article 8(g) of the Immigration (Restrictions on Employment) (Codes of Practice and Amendment) Order 2014
^ 43 Text substituted on 16^th May 2014 by article 9 of the Immigration (Restrictions on Employment) (Codes of Practice and Amendment) Order 2014
^ 44 Text substituted on 28^th January 2019 by article 2(11) of the Immigration (Restrictions on Employment) (Code of Practice and Miscellaneous Amendments) Order 2018

Explanatory Memorandum

1. This explanatory memorandum has been prepared by The Home Office and is laid before Parliament by Command of Her Majesty.

2. Description

2.1 This Order sets out detailed provisions to prevent illegal migrant working in the United Kingdom as required by sections 15 , 16 , 19 and 23 of the Immigration, Asylum and Nationality Act 2006 (“the Act”).

3. Matters of special interest to the Joint Committee on Statutory Instruments

3.1 None

4. Legislative Background

4.1 Section 15 of the Act allows the Secretary of State to serve an employer with a notice of liability requiring the payment of a penalty of a specified amount where they have employed a person aged 16 or over, who is subject to immigration control unless that person has been given valid and subsisting leave to be in the United Kingdom by the Government and that leave does not restrict them from taking the job in question or the person comes into a category where the employment is also allowed. An employer may acquire a statutory excuse from payment of the penalty by checking, copying and retaining the copy of specific documents belonging to the applicant prior to the employment commencing. This instrument sets out the detailed provisions whereby the statutory excuse may be acquired and retained. When the potential employee or employee presents a document(s) that demonstrates an entitlement to work in the U.K. for an indefinite period, as contained in List A, no further checks are required during that employment. Where a potential employee or employee presents a document(s) that demonstrates a limited entitlement of employment as contained in List B, the checks need to be undertaken again within a twelve month period, if the statutory excuse is to be retained.

4.2 Section 16(3) of the Act provides that the employer may object to the payment of a penalty to the Secretary of State on the basis that he is not liable, has acquired a statutory excuse or the penalty is too high. This instrument prescribes the manner in which the objection shall be made. The instrument also provides that the Secretary of State shall determine the objection within 28 days from the date on which the notice of objection was given to the Secretary of State.

4.3 Section 19(1) of the Act provides that the Secretary of State shall issue a Code of practice specifying the factors to be considered by the Secretary of State in determining the amount of the penalty. This instrument allows for the said Code to be brought into effect.

4.4 Section 23(1) of the Act provides that the Secretary of State shall issue a Code of practice specifying what an employer should or should not do in order to ensure that while avoiding the liability of a penalty or committing an offence of knowingly employing an illegal migrant worker as provided for in section 21 of the Act, the employer also avoids contravening the Race Relations Act 1976 or the Race Relations (Northern Ireland) Order 1997. This instrument allows for the said Code to be brought into effect.

5. Territorial Extent and Application

5.1 This instrument applies to all of the United Kingdom.

6. European Convention on Human Rights

6.1 As the instrument is subject to the negative resolution procedure and does not amend primary legislation, no statement is required.

7. Policy background

7.1 The new system of civil penalties for employers who employ illegal migrant workers will provide a swift and effective means of tackling employers who are less than diligent in carrying out specified document checks before and, for their migrant workforce, after the point of recruitment. The system of civil penalties is designed to encourage employers to comply with their legal obligations, without criminalising those who slip up in operating their recruitment and employment practices. Employers will be excused from payment of the penalty if they undertake specified document checks at the point of recruitment and repeat the checks at least once every twelve months for those employees with limited leave to enter or remain in the United Kingdom. This Order will set out how the statutory excuse can be acquired and retained. It will confirm which specific documents need to be checked at the point of recruitment, which specified documents need to be checked at least once every twelve months, what steps the employer must take in copying and retaining the copied document and what steps the employer should take in checking that the document belongs to the holder in order that the statutory excuse may be acquired and retained.

7.2 An employer who has been served with a civil penalty is entitled to object to the Secretary of State on the basis that the employer is not liable to the penalty, has acquired and retained the necessary statutory excuse to the penalty or that the amount of the penalty is too high. This instrument sets out the prescribed manner in which the objection shall be made. The objection shall contain the following minimum information:—

Penalty reference number
Name and contact address of employer
Name and contact address of employee in respect of whom the penalty was issued
Full grounds of objection
Full details of the employer’s ability to pay if the employer requests permission to pay by instalments
Confirmation and details of any appeal made by the employer to a County Court or Sheriff Court on the basis that the employer is not liable to the penalty, has acquired and retained the necessary statutory excuse to the penalty or that the amount of the penalty is too high.

The employer must also annex any documents to be relied upon in support of the objection.

The objection shall be signed, dated and served upon the Secretary of State at the address set out in the penalty notice within 28 days of the date specified in the penalty notice. The Secretary of State shall determine the objection within 28 days from the date on which the notice of objection was served on the Secretary of State or such longer period as may be agreed between the Secretary of State and the employer.

7.3 Section 19 of the Act provides for a Code of practice to specify the factors to be considered by the Secretary of State in determining the amount of the penalty to be imposed on the employer. This includes whether any previous penalty notices have been issued on the employers in the preceding three years, whether follow up checks have been undertaken by the employer, if required, and whether the employer reported his suspicions of immigration abuse, or co-operated with the Border and Immigration Agency. A draft of this Code has been the subject to a public consultation held between 15 May and 7 August 2007 and been laid before Parliament. This instrument allows for this Code to be brought into effect.

7.4 Section 23 of the Act provides for a Code of practice specifying what an employer should or should not do in order to ensure that while avoiding the liability of a penalty or committing an offence of knowingly employing an illegal migrant worker as provided for in section 21 of the Act, the employer also avoids contravening the Race Relations Act 1976 or the Race Relations (Northern Ireland) Order 1997. The draft Code has been subject to a public consultation held between 15 May and 7 August 2007 and been the subject of specific consultation with the Commission for Racial Equality, the Equality Commission for Northern Ireland and bodies representing employers and workers. This instrument allows for this Code to be brought into effect.

7.5 The illegal working provisions form part of a balanced package of measures to prevent illegal migrant working in the U.K., incorporating additional support for law abiding employers through verification services, the points based scheme and identity cards for foreign nationals. The new system needs to reflect a proportionate approach to non-compliance, whilst providing a sufficient deterrent effect so that employers won’t want to risk their profits and reputation by using slipshod employment practices and employing illegal migrant workers. The introduction of mandatory Biometric Immigration Documents for non-EEA nationals in the U.K. Borders Act 2007 will provide the opportunity in due course to improve the security and simplify the range of documents to be checked.

8. Impact

8.1 A Regulatory Impact Assessment was prepared for the Act and was published on 22 June 2005. This estimated that the cost to employers of familiarising themselves with new guidance would be approximately £ 27.2 million, with the projected cost to business of a continuing obligation in the fifth year after its introduction being approximately £ 1.3 million.

9. Contact

9.1 The Illegal Working Unit (Tel: 020 8760 2955 or e-mail: iwu@homeoffice.gsi.gov.uk) can answer any queries regarding the statutory instrument.