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Appeal fails against £30,000 fine for employing illegal workers

21 April 2017

A takeaway proprietor has failed in an appeal against a £30,000 civil penalty notice imposed for employing two illegal workers, in one of the first Scottish cases of its kind.

Sheriff Douglas Kinloch at Livingston Sheriff Court held that the appeal, under s 17 of the Immigration, Asylum and Nationality Act 2006, could not amount to a new hearing of the decision to impose a penalty, including mitigating factors and ability to pay, but would normally limit the court to considering whether the Secretary of State had properly applied the law and the relevant code of practice.

Zafar Mohammed, who runs Kurry King in Bathgate, was served with the notice after immigration officers found he was employing two people who did not have permission to work in the UK.

After the discovery, Mr Mohammed was served with an information request which required him to complete a response form by 5 February 2016. He did not do so until 11 February. In it he stated he had known one of the workers personally, had seen his driving licence and believed him to be entitled to work in the UK. The other had been hired by his nephew while in charge of the premises during Mr Mohammed's absence.

The penalty provisions comprise two levels, level 1 applying where the employer has no similar findings against them in the previous three years and starting with a maximum of £15,000 per employee, which can be mitigated (1) where the suspected illegal employee has already been reported, (2) where the employer has actively cooperated with the Home Office, and (3) if both (1) and (2) apply, effective document checking practices are in place.

Accepting the approach argued for the Home Secretary, Sheriff Kinloch stated: "I am persuaded that if an appeal hearing were to become a wide ranging enquiry into general mitigating factors, or into ability to pay, it would introduce huge uncertainty into the operation of the code of practice, and operate as a very considerable disincentive to employers to comply with it and to cooperate with immigration officers. I am also persuaded that this would be to the very real prejudice of employers who did not appeal the imposition of a civil penalty notice. They would effectively be penalised for complying with the code...

"As I see it, the court does not have an unfettered discretion in considering an appeal. In particular, where the amount of the penalty is in question the court must have regard to the code of practice. It is not permitted simply to determine what it thinks is an appropriate penalty, considering the matter independently."

In the present case Mr Mohammed had failed to provide evidence of effective document checking practice, and a driving licence was not one of the acceptable documents. He had not reported the workers; he had not actively cooperated, having missed the deadline – the sheriff could not say the scheme had been improperly applied, even if the result was "quite hard on the pursuer" – and the third factor was therefore not available either.

The sheriff continued: "The pursuer’s ability to pay the penalty is not, in my view, something which under the code of practice entitles him to any reduction in the penalty. The relevance of his financial circumstances is that he could have asked the defender’s officers to be allowed to pay the penalty in instalments over a period of up to three years. That is not a power which is given to the court under s 17, as the court can only cancel or reduce the penalty, or dismiss the appeal."

Click here to view the sheriff's decision.

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