Just when we were beginning to worry that a week had passed without a decent immigration story, our own Immigration Minister comes up trumps!  Mark Harper MP has resigned from his Cabinet post because his (now former) cleaner, Ms Isabella Acevedo, does not have the right to work in the UK.  Mr Harper has denied any illegality on his part but the press is full of reports that he could be fined between £5,000 and £10,000.  Given his role in pushing through the Immigration Bill through Parliament, his resignation is understandable whatever the outcome but has he actually broken the law and, if so, what sanction could he face?

Well, we understand that Ms Acevedo began working for him April 2007. If that is correct, Mr Harper will not be subject to the current civil penalty regime where negligent employers can be fined up to £10,000 per illegal employee (due to rise to £20,000 from April this year).  This system only applies where the employment in question began on or after 29 February 2008 (when the Immigration Asylum and Nationality Act 2006 came into force).  Instead, section 8 of the Asylum and Immigration Act 1996 will apply.  In summary, this provides that anyone who employs an employee without permission to work in the UK will be guilty of a criminal offence unless the employer can prove that, before the employment began, he had sight and took a copy of prescribed documentation confirming the employee’s right to work.  However, the employer will not be able to rely on the ‘defence’ of having seen such documentation if he has knowingly allowed the employee to work illegally (this would apply, for example, where Mr Harper knew or should have known that documentation provided to him was forged or did not relate to Ms Acevedo or that her right to work had lapsed since first providing her documentation).

On the face of it, therefore, if Mr Harper cannot prove that he had sight of Ms Acevedo’s right to work documentation before she started working for him (and he is likely to struggle on this front given that he says in his resignation letter that he was unable to locate the copies taken by him), then he could be liable on summary conviction to a fine of up to £5,000.

However, it is important to note that both the current law preventing illegal working (and that which would apply in Mr Harper’s case) refers specifically to liability in the case of ’employment’ only.  According to the legislation ’employment’ is deemed to exist where there is a ‘contract of service or apprenticeship’ in place (whether written or unwritten) – not particularly helpful for our purposes.  Mr Harper says he took careful steps to ensure that Ms Acevedo would be considered ‘self-employed’ and he may have been correct in this analysis (although, if that was the case, we would question why he then went on to check her documentation).

Determining whether someone is employed or self-employed is far from straightforward and the relevant employment status ‘tests’ to be applied depend on the circumstances of each individual case (indeed, there is a vast body of case law on the subject).  Relevant factors in this scenario might include whether or not there was ‘mutuality of obligations’ i.e. a clear commitment by Mr Harper to provide Ms Acevedo with regular work and for her to complete it, the extent to which Mr Harper controlled how and when the cleaning was done, as well as whether or not Ms Acevedo would still have been paid when not required to clean. We understand that Ms Acevedo only worked for Mr Harper for a few hours a week and that she worked for other inhabitants in the same block of flats.  It’s possible therefore that there was a significant degree of flexibility over when and how she cleaned.  It may also have been the case that if she did not clean Mr Harper’s flat in any given week or Mr Harper decided that her services were not required, neither party would have expected her to be paid.

In any event, even if Ms Acevedo is not considered to be genuinely self-employed, she could still fall into the category of ‘worker’ (a status between self-employment and employment where the individual is not afforded the same protection as an employee) without actually being considered an ’employee’.   The Home Office may well try to argue and doubtless has in the past proceeded to issue civil penalties on the basis that the legislation is intended to cover workers as well as employees and that Mr Harper is therefore still liable.  Indeed, the Home Office’s current policy guidance on the prevention of illegal working refers alternately to illegal ’employees’ and ‘workers’ (without actually explaining the distinction) perhaps in the hope that no one will notice this obvious loophole.   All in all the position is far from clear and although Baroness Scotland of Asthal was fined £5,000 in 2009 in similar circumstances, Mr Harper may fare better, particularly given that he appears to have volunteered this information to the Home Office before being caught out.

In light of this, perhaps the focus of the Immigration Bill should be to clarify this area of the law before it starts imposing somewhat unrealistic obligations on landlords (but that’s a story for another day…).