The Employer's liability under Section 8 of the Asylum and Immigration Act 1996 when employing working holidaymakers.

One should not be misled by the title of the Asylum and Immigration Act. Its purpose is not solely to regulate applicants for political asylum. The Act is aimed at all immigrants. In an attempt to counteract the growing use of illegal workers and to provide effective sanctions, section 8 of the 1996 Act introduced a specific offence of employing a person who does not have permission to work in the United Kingdom. For each employee, the employer is liable for a fine of up to £ 5000.00. In the event of the employer being a company, a variety of management personnel may face prosecution (section 8(5) and (6)).

It is the second part of section 8(1)(b) that is most relevant to employers of working holidaymakers.

Section 8 reads:

"Persons subject to immigration control Restrictions on employment.

8. - (1) Subject to subsection (2) below, if any person ("the employer") employs a person subject to immigration control ("the employee") who has attained the age of 16, the employer shall be guilty of an offence if-

(a) the employee has not been granted leave to enter or remain in the United Kingdom; or

(b) the employee's leave is not valid and subsisting, or is subject to a condition precluding him from taking up the employment, and (in either case) the employee does not satisfy such conditions as may be specified in an order made by the Secretary of State. [Emphasis added]

(2) Subject to subsection (3) below, in proceedings under this section, it shall be a defence to prove that-

(a) before the employment began, there was produced to the employer a document which appeared to him to relate to the employee and to be of a description specified in an order made by the Secretary of State; and

(b) either the document was retained by the employer, or a copy or other record of it was made by the employer in a manner specified in the order in relation to documents of that description.

(3) The defence afforded by subsection (2) above shall not be available in any case where the employer knew that his employment of the employee would constitute an offence under this section.

(4) A person guilty of an offence under this section shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale.

(5) Where an offence under this section committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of-

(a) any director, manager, secretary or other similar officer of the body corporate; or

(b) any person who was purporting to act in any such capacity, he as well as the body corporate shall be guilty of the offence and shall be liable to be proceeded against and punished accordingly.

(6) Where the affairs of a body corporate are managed by its members, subsection (5) above shall apply in relation to the acts and defaults of a member in connection with his functions of management as if he were a director of the body corporate.

(7) An order under this section shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.

(8) In this section- "contract of employment" means a contract of service or apprenticeship, whether express or implied, and (if it is express) whether it is oral or in writing; "employ" means employ under a contract of employment and "employment" shall be construed accordingly."