Explanatory Note
(This note is not part of the Order)
Section 8 of the Asylum and Immigration Act 1996 (“the 1996 Act”) provides that an employer commits an offence if he employs a person subject to immigration control who has attained the age of 16, if the employee has not been granted leave to enter, or remain in, the United Kingdom, or if his leave is not valid and subsisting or is subject to a condition precluding him from taking up employment.
Section 8(1) of the 1996 Act provides that the offence is not committed if the employee satisfies one of the conditions to be specified in an Order made by the Secretary of State. Article 3 specifies these conditions. The conditions are similar to those specified in Part I of the Schedule to the Immigration (Restrictions on Employment) Order 1996, which is revoked by this Order. The condition specified in article 3(2) of the Order differs from that specified in paragraph 2 of Part I of the Schedule to the earlier Order, in that it has been modified to reflect the changes to the immigration appeals system brought about by the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”). The condition now specified in article 3(3) is identical to that specified in paragraph 3 of Part I of the Schedule to the earlier Order.
Section 8(2) of the 1996 Act (as substituted by section 147(2) of the 2002 Act) provides a defence for an employer who proves that before the employment began any relevant requirement of an Order of the Secretary of State under section 8(2A) of the 1996 Act was complied with. Section 8(2A) of the 1996 Act was inserted by section 147(2) of the 2002 Act.
Section 8(2A)(a) of the 1996 Act (as inserted by section 147(2) of the 2002 Act) states that an Order may require the production to an employer of a document of a specified description. Article 4(2)(a) specifies these descriptions of documents.
Section 8(2A)(b) of the 1996 Act (as inserted by section 147(2) of the 2002 Act) states that an Order may require the production to an employer of one document of each of a number of specified descriptions. Article 4(2)(b) specifies these combinations of documents, which if produced provide a defence.
Article 4(3) specifies the steps that an employer must take to copy or record the content of a document produced to him in accordance with the Order. In the case of a passport or other travel document, the front page and any page containing specified information (including the holder’s personal details, the holder’s photograph and/or signature and the date of expiry) must be photocopied or scanned. In the case of other documents, the whole document must be photocopied or scanned.
Article 4(4) states that when a document is produced in accordance with the Order, the employer must satisfy himself that the document appears to relate to the employee in question. If the document contains a photograph, the employer must check the likeness of the photograph and if the document contains a date of birth, the employer must check it to satisfy himself that it is feasible.
Article 4(5) states that where two documents are produced under either paragraph 1 or paragraph 2 of Part 2 of the Schedule, and the name which appears on the documents differs, a document must be produced explaining the difference.
By virtue of section 8(3) of the 1996 Act, the defence is not available in any case where the employer knew that his employment of the employee would constitute an offence under section 8.