No passport, no job

A new law dictates that employers must also be immigration officers. By Camilla Palmer and Alison Stanley

Beginning this week all employers, even those employing only one individual (such as a nanny) will take on a new role - that of immigration officers. The Home Office denies this, saying that "responsibility for immigration control remains firmly with the Immigration Service". Yet the new Asylum and Immigration Act 1996 in effect imposes an obligation on employers to carry out checks on all job applicants to see if they are allowed to work in the UK. Although these checks are not compulsory, if employers do not carry them out they risk a fine of up to pounds 5,000 if it transpires that an employee has no right to work in the country.

Employers will not commit an offence if they check, before hiring someone, that she or he has a right to work in the UK. This is done by asking for one of a number of specified documents, for example a passport or other travel document, birth certificate or document stating the person's national insurance number. However, it is often very hard to work out from these documents whether a person has the right to work.

The quantity of documents is extensive and employers may decide to rely on national insurance numbers. However, as national insurance numbers have been issued to a large number of people who do not have an unqualified right to work in the United Kingdom, a national insurance number alone will be insufficient in certain cases. The most obvious example is the working holiday-maker category. Thousands of young people come to the UK every year in this capacity.

Working holiday-makers are Commonwealth citizens, aged between 17 and 27 who are given permission to work in the UK for up to two years, "incidental to their holiday". This phrase is not elaborated in the Immigration Rules, nor is it clear from the passport stamp given to a working holiday-maker, but people on this category are meant to work only part-time, or on a casual basis. If they work full-time, they should only do so for half of their stay in this country. The potential for confusion for employers is great: on the one hand employers will have great difficulty in deciding who has a right to work, and on the other, they must not discriminate between people, merely on the basis of their race, colour or nationality. For a government that champions deregulation, the obligations of the Act impose an extra and potentially costly burden on employers.

One of the main dangers in this unnecessary and oppressive piece of legislation is that some employers will make an assumption that white applicants have the right to work but black and ethnic minority applicants do not. There is a real risk of race discrimination, as some employers may consider that it is easier to interview and appoint only white applicants. Others may carry out a check only on applicants who they think do not have a right to work here. Employers who act on these assumptions will fall foul of the Race Relations Act. The starting point should be, as the Government itself acknowledges, that most people from ethnic minorities are British citizens and most non-British citizens from the ethnic minorities are entitled to work here.

The Race Relations Act outlaws discrimination on the grounds of race in the selection of employees. The Home Office guidance points out that if an employer refuses to consider anyone who "looks or sounds foreign", this is likely to be discrimination. It will also be discriminatory to ask people who look or sound "foreign", for their passports and people who look or sound "British" for their national insurance number. The only way to avoid discrimination, advises the Government, is to treat all applicants in exactly the same way at each stage of the recruitment process. Employers who do not appoint a person in order to avoid having to carry out a check or who only do checks on white applicants will be breaking the law. And the consequences can be expensive. There is now no limit on the amount of compensation that can be awarded under the Race Relations Act. Some applicants have received substantial awards, one recently for pounds 130,000 for unlawful discrimination.

Racial discrimination in the workplace is already rife. There is high unemployment among many ethnic minority groups, who are also denied training opportunities and promotion. There is a continuous stream of discrimination cases brought against employers for denying jobs, training, and promotion to people because of their race, nationality or colour. The employment provisions of the Asylum and Immigration Act 1996 are yet another barrier to equal opportunities.

The Labour Party also believes that the checks will harm race relations, place further burdens on businesses and will be ineffective in tackling illegal working. Jack Straw, the Shadow Home Secretary, has said that the checks "will almost certainly be effective in limiting further the employment prospects of black and Asian people and damage race relations." He has pledged that a Labour government would not enforce the provisions. He should go further and pledge to repeal them.

The writers are solicitors at Bindman & Partners in London specialising in discrimination and immigration law.