Immigration, Asylum and Nationality Bill

moved Amendment No. 36:"Page 7, line 37, leave out from ““he”” to end of line 41 and insert ““took reasonable steps to comply with any prescribed requirements in relation to the employment””" The noble Viscount said: In moving Amendment No. 36, I shall speak also to Amendments Nos. 37 and 38. The Explanatory Notes inform us that Clause 15 on employment penalties provides,"““that a person is liable to a penalty if he employs an adult subject to immigration control who has not been granted leave to enter or remain in the United Kingdom o whose leave is invalid, has expired, or is subject to a condition preventing him from accepting the employment. An employer is excused from paying a penalty if he complies with the requirements of an order made by the Secretary of State. The excuse does not apply where the employer knew that his employment of the individual was unlawful””." As an aside, I note that this refers only to adults and not children. It would also be interesting to know how this clause sits with the recommendation of the House of Lords EU Sub-Committee F report on economic migration. As the Second Reading debate on this Bill highlighted, the employment of illegal immigrants can end in tragedy, as demonstrated only too well at Morecambe Bay. It is a problem that all sides of the House condemn. Lobbyists such as the Immigration Law Practitioners Association (ILPA) and the CBI support sanctions on employers in principle. Indeed, they welcome criminal offences for the deliberate employment of illegal workers. However, there remain serious concerns regarding the civil penalties proposed in this clause. Those concerns were not fully addressed in the other place. As such, I have tabled Amendments Nos. 36, 37 and 38. I am sure that the Minister is fully aware of the CBI’s views that,"““civil penalties will create more problems than solutions””," and that this clause as a whole is a ““distraction””. Indeed, I hope that she will take time in her reply to outline why sanctions already available under the 1996 Act have not been enforced more often and why the proposed changes will be any better, fairer or more efficient. How will it be enforced and by whom? I have read somewhere that there are to be only 12 enforcers. If that is true, it is hard to see how they will work against the tide of more than half a million illegal immigrants currently in our country. The first amendment removes subsection (4) and the obligation for an employer to show outright that he has complied with any prescribed requirements in relation to the employment, and replaces it with an obligation to show that he,"““took reasonable steps to comply with any prescribed requirements in relation to the employment””." Amendment No. 38 inserts a new paragraph (g) into subsection (6) to ensure that penalty notices must state,"““the steps which an employer must take to avoid a further breach in relation to any employee””." Amendment No. 37 will excuse a first-time offender from a civil penalty if they co-operate fully with the enforcement officers, and are willing to take help and advice to avoid the repetition of the offence. All three amendments aim to lighten the onerous burden that the Bill currently places on employers, particularly small businesses, and those whom the Bill could catch unawares. They will also work against the very real risk of informal discrimination against all migrants, whether they are here lawfully or not, or are indeed British-born but—for want of a better way of saying this—““look foreign””. ILPA warns that discrimination in this context ““should not be underestimated”” and that it is ““ill understood by government””. Furthermore, it suggests that the draft codes of practice, to which I am sure the Minister will refer, have not solved the problem—indeed, they are apparently,"““little more than an expression of pious hope””." The Bill places a greater burden on businesses that are already swamped in endless red tape. The clause asks them to make increasingly complex document checks, costing them time and money, as well as increasing the likelihood of an innocent mistake being made. That is especially true of the requirement to check the legality of employees on an ongoing basis in subsection (7)(e) and not just the point of employment, a problem highlighted by the illegal working taskforce’s regulatory impact assessment of the Bill. We have already established during debate that the Home Office asks that people do not apply for a variation—including extension—of leave more than 28 days before that leave is due to expire. Those applications can take a considerable amount of time to decide. Thus there is every chance that when an employer comes to conduct an ongoing check, the employee will not be able to present the relevant documentation, as it will be with the Home Office. As ILPA highlighted earlier, copies of documents in the employer’s possession may show that leave was due to expire. What happens then? How can the employer discharge the obligations imposed on him by the clause? Will employers risk a breach in law or sack the individual concerned? Debates in the other place have offered no solution to that so far. Amendment No. 36 will allow the matter to be considered under the principle of reasonableness. Similarly, Amendment No. 37 will aid the situation proposed above. It will act as a yellow card, ensuring that where honest mistakes have been made the employer is helped to comply, not punished. Only if there is a repetition of negligence or failure to co-operate with the authorities should the penalties be imposed. The examples above demonstrate not only a real threat of discrimination, but the expectation that businesses will act as a continual watchdog on behalf of the Government. That is not their role. Yes, we should hold them to account for repeated actions involving illegal workers, but should not penalise the first innocent mistake, and should support them in their employment of legal workers. I beg to move.