August 22, 2016

Byron Burger Bitten? Employers Should Chew on Immigration Enforcement Possibilities

Recently, U.K. newspapers have been filled with details of immigration enforcement activity in central London at Byron, a respectable upmarket chain of casual dining restaurants known for their high end burgers. The enforcement resulted in the deportation of approximately 35 workers. Protests ensued as a result, including the release of live cockroaches and locusts along with a call to boycott the chain. This incident has spiked interest in the methods of U.K. immigration enforcement activities and how employers can protect themselves from penalties and negative publicity.

Restaurants compose a significant proportion of the businesses which are found to employ illegal workers in the U.K. Every six months, the government publishes a region-by-region “name and shame” list of businesses against which penalties for illegal working have been levied. Many of these businesses are small operations, but even a respectable upmarket chain such as Byron would be on the radar of the Home Office.

History of Immigration Checks 

As employers, and more recently landlords, become important gatekeepers in the move to significantly reduce illegal immigration, the Home Office has refined the guidance that it offers and has increased its support for those conducting checks. Prior to an individual starting work, an employer is required to conduct a Right to Work check where the prospective employee’s original documents are inspected and certified copies are taken and retained.

Initially, from 1997 to 2004, Right to Work checks required the prospective employee to present only an original document from a previous employer or government agency confirming their permanent National Insurance number, provided that the employer was satisfied that it related to the person presenting it. Individuals who started employment with a business during that period often slip beneath the radar. The check only needed to be conducted once prior to beginning employment and, as long as a record was kept, would provide and continues to provide a statutory excuse should it later transpire that the individual was working illegally. 

In 2004 the regime toughened and introduced a requirement to provide identity documents, including visas, along with the need to conduct follow-up checks every 12 months for those with limited leave to remain (or earlier if their permission to remain in the U.K. expired more quickly). Since then smaller changes have been made, notably in March 2008 the introduction of a requirement to conduct checks on individuals transferring to a company via Transfer of Undertakings (Protection of Employment) (TUPE) regulations. Ongoing monitoring is now based on the validity dates of immigration status documents and conducting follow-up checks prior to the expiry of the visa or Biometric Residence Permit. 

Employer Compliance and Fraudulent Papers

Byron’s recent press release following the raids conducted by the Home Office states that the Home Office recognises that Byron as an employer has always been fully compliant with immigration and asylum law in its employment practices. Byron goes on to state that it has conducted the relevant Right to Work checks correctly but that sophisticated counterfeit documentation was presented by the former employees in question. With advances in technology, fraudulent identity documents have undoubtedly become increasingly sophisticated at a time when more of the burden of preventing illegal working falls upon employers. It was the Home Office that identified illegal workers had been employed on the basis of fake documents.

Many of the recent opinion pieces have described how Byron had deceived its workers, some of whom had been employed with the company for several years, by summoning them to a meeting under false pretences. It is important to note that these individuals obtained fraudulent identity documents which is itself a criminal offence, as is using these counterfeit documents to make material gain. 

Employer Penalties and Business Reputation

Knowingly employing an illegal migrant worker can result in criminal prosecution and an unlimited fine and/or imprisonment. The vast majority of enforcement, however, occurs through a civil penalties regime. For a business not found to have been employing illegal workers in the last three years, the maximum civil penalty is currently set at £15,000 per illegal worker found to be employed. For businesses with a more chequered history, the maximum civil penalty is £20,000 per illegal worker. When levying a civil penalty for employing an illegal worker, the Home Office considers the conduct of the employer, and the fine can be reduced if the business has reported any suspicions prior to any Home Office inspection. If a business is investigated, it can reduce the fine to be levied by cooperating actively with the Home Office. If the employer demonstrates both of these and demonstrates effective recruitment and Right to Work practices, then it is possible to receive only a warning in the case of a first offence in the past three years. 

Employers issued with a warning instead of a penalty fine are not listed on the six-monthly Illegal Penalties list and so would not be subject to negative publicity on the part of the Home Office. In Byron’s case, an unnamed employee spoke with a Spanish language, online-only newspaper, El Iberico, following the raid. El Iberico contacted Byron requesting a response. Byron then issued its press release which sets out clearly that it has complied with the relevant laws and that what has taken place is an enforcement of these laws. It appears that El Iberico’s coverage has done much to frame the debate from the aggrieved workers’ perspective.

For employers it is a matter of balancing short-term and long-term impacts, and the enraged social media storm generated by this story should pass as journalists consider the other issues raised and communicate these to their readership. Employers could likewise communicate the significant responsibilities that they have under U.K. immigration laws to their employees at the outset to minimise the possibility of unmediated reactions such as those of the anonymous employee who spoke with the online press following the raid.

Receiving a civil penalty for employing an illegal worker can have a substantial impact on a business which relies upon skilled migration. A restaurant chain, for instance, could have managerial infrastructure which might include in-house legal, financial and IT experts. These specialist skills are increasingly required in modern business, and demand often outstrips supply. Holding a Tier 2 General Sponsor Licence enables a business to sponsor the immigration status of skilled non-EEA nationals where they have shown that there are no suitable British or EEA nationals available for the role. 

Being found to have employed an illegal migrant worker can lead to a Sponsor Licence being revoked: not only would a business then no longer be able to sponsor highly skilled foreign nationals, those highly skilled foreign nationals currently employed legally would have their immigration status curtailed to 60 days and would have to find a different employer in the U.K. prepared to sponsor them or return to their home country prior to the visa curtailment date.

Best Practices for Employers

It is therefore more important than ever to conduct the appropriate checks. It should be remembered that even an employer that has complied with the Right to Work checks could have undocumented workers on its books. As well as sophisticated modern counterfeit documents such as those which misled Byron, there are undoubtedly employees throughout the U.K. whose Right to Work was only checked under the more liberal regimes of 1997-2004 or who transferred under TUPE provisions prior to March 2008. Whilst it is not a requirement to conduct follow-up checks in these instances, it is advisable; however, checks must be conducted across the entire work force that began employment during this period to avoid possible discrimination claims.

A lot of the coverage has centred on whether Byron’s course of action was fair and whether the company should have taken steps to regularise the status of those found to have been working illegally. Regularisation of immigration status in the U.K. is a challenging exercise. Applications for those living undocumented in the U.K. for a number of years are usually made under Article 8 of the European Convention on Human Rights (ECHR), the right to family life and private life. These applications take time to process, and success is not guaranteed. In the case of Byron’s undocumented workers, offences were committed beyond overstaying of a visa, and this would undoubtedly prejudice any application to regularise their status in the U.K.

The best course of action for Byron and for its workers is to cooperate fully with the Home Office. Where an individual is found to have overstayed their U.K. visa by a period of more than 90 days, if they leave voluntarily they can be subject to a one-year, two-year or five-year ban depending upon how quickly they leave the U.K. and whether this is at their own expense. If they do not elect to leave voluntarily and are therefore subject to enforced deportation, or they are found to have misled or lied at the time of their original application, then it is possible for a 10-year ban to be levied.

Tipping off the workers as a ‘just’ reward for their years of service would likely have landed Byron in hotter water than that in which it currently finds itself with a hostile minority of individuals as the company could then have potentially perverted the course of justice. In the case of the individuals concerned, they may have been guilty of more serious criminal offences relating to document fraud. A non-custodial sentence for a criminal offence would subject the individual to a two-year ban from making an application inside the U.K. and 12 months for applying outside the U.K. for entry clearance. A custodial sentence of less than 12 months would lead to a five-year ban; a one- to four-year custodial sentence would necessitate a 10-year ban.

Unfortunately it appears that Byron was between a rock and a hard place. In attempting to make any impact to its business more palatable by cooperating with the Home Office as required, it was actually held to the flame by the public through social media and protests.

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