An investigation by the UK Border Agency confirmed that Loloahi Tapui-Zivancevic, who was employed by the Attorney General, Baroness Scotland, for six months, did not have the right to work in the UK.
The Attorney General said she had been shown a letter purporting to be from the department where she previously served as a minister, saying that Mrs Tapui-Zivancevic had the right to live and work in Britain.
Although officials found that the Baroness did not knowingly employ an illegal immigrant and had made document checks to establish the employee’s right, she was fined £5,000 because she failed to take copies, meaning that she was unable to produce evidence of what she had seen.
She is the first individual to fall foul of the rules although more than 2,000 companies have also been fined in the last two years.
The Baroness sacked Mrs Tapui-Zivancevic and called in the border agency herself, after learning that she had been working illegally.
The Baroness maintained that she was initially shown five different categories of paperwork: a passport; a P45 form from her previous employer; national insurance details; a number of references from past employers and the letter apparently from the Home Office. She then asked for the cleaner’s marriage certificate, which confirmed that Mrs Tapui-Zivancevic’s husband, Alexander, is a British national.
Sources close to the Baroness said that the Tongan told the peer that her husband was a lawyer and a member of Middle Temple, one of the London Inns of Court, suggesting that he is a barrister.
In fact he is a solicitor who works from home offering property conveyancing privately after being laid off by a north London law firm earlier this year.
Sources close to the Baroness said that she was "very clear about what she saw" but had now concluded that the apparent Home Office letter was a forgery.
"Obviously she didn’t keep copies of the documentation but it would have been a letter that confirmed her leave to remain in the country at that time, draw your own conclusions," said one source.
While the Baroness insisted that she was guilty only of a "technical" breach, immigration lawyers said she had made a "basic" mistake.
Briefly
This case has highlighted the complexity of this area of law and how easy it is for even well-meaning employers to trip up and find themselves on the receiving end of a civil penalty.
Under the legislation, which came into force in February 2008, there is no legal requirement to check someone’s immigration status, and employers cannot be fined simply for failing to carry out the checks. However, if it turns out that the person hired is working illegally, the employer faces a civil penalty of up to £10,000.
Employers can establish a statutory excuse from this penalty if they had carried out appropriate checks on the person’s immigration status. This means that if it later turns out the documents provided were forgeries, the employer should have an excuse. However, there are numerous pit-falls.
The checks must be carried out before the employee’s first day of work; otherwise the statutory excuse is not established.
Employers must also ensure that they retain a copy of the documents they check. This is what the attorney-general has said she failed to do.
Further, employers must ensure they obtain the right documents. Only those set out in the legislation and guidance will give employers the statutory excuse. For example, relying on a National Insurance card alone will not be sufficient to show the person has the right to work in the UK or to establish a statutory excuse.
After all this effort, the statutory excuse only lasts for 12 months from the date on which the check was carried out, if the person has limited leave to remain in the UK. The employer must carry out further checks at least every 12 months to maintain the statutory excuse.