UK Offence Report

Unauthorised employment of accession State national – employer offence

regulation 12(1) of The Accession (Immigration and Worker Authorisation) Regulations 2006 (revoked)

This offence was read from the text as made, and no revised version was available, so a later revocation could not be ruled out. Check the current text at legislation.gov.uk.

What the provision says

1 Subject to paragraphs (2) and (3), an employer who employs an accession State national subject to worker authorisation during the accession period shall be guilty of an offence if—

a the employee does not hold an accession worker authorisation document; or

b the employee’s accession worker authorisation document is subject to conditions that preclude him from taking up the employment.

Text as made, from legislation.gov.uk. © Crown copyright, reused under the Open Government Licence v3.0. This is the text as originally made; later amendments are not shown here.

Who it binds, and what has to be proved

Binds
an employer
Conduct
breaching a condition of a licence, permit or consent
Fault element
Strict liability
Burden of proof
No statutory defence — prosecution proves everything

The prosecution must prove that the conduct happened. This is a strict liability offence as drafted: the provision uses no word of intention, knowledge, recklessness or negligence, so there is no need to show that an employer meant to do it, knew about it, or was careless.

Intention, knowledge and carelessness are irrelevant to guilt. They may still matter a great deal to sentence.

The provision states no defence, so the prosecution bears the burden on every element of the offence.

Classifier’s reasoning: no word of intention, knowledge, recklessness or negligence in the offence or its provision.

What would breach regulation 12(1)?

These are illustrations, not law. They are generated from the provision’s own words to show the shape of the offence. Whether any particular conduct is caught depends on the full text, on any amendment since, and on the facts.

  1. On these words an offence is committed where an employer employs an accession State national subject to worker authorisation during the accession period.
  2. Holding a valid licence but doing the thing it allows outside the hours, place or limits its conditions set under the Accession (Immigration and Worker Authorisation) Regulations 2006.
  3. Failing to do something a condition positively requires - a record, a notification, a monitoring step - even though the licensed activity itself is carried on properly.

Penalty

Mode of trial
Summary only — tried in a magistrates’ court
Maximum fine
£5,000
Standard scale
Level 5
Maximum prison (summary)
Not determined

this is the level 5 value when the instrument came into force (2007-01-01); the standard scale is keyed to the date the offence was committed, and for conduct today the same words mean an unlimited fine.

Sentencing

Offences of this kind are usually sentenced under the guidelines below. This is a mapping by subject, not a finding about this provision, and the links go to a search of the Sentencing Council’s own site.

Prosecution figures

No published per-offence figure was found for this provision, and it could not be matched to a Ministry of Justice offence code. Offences created by statutory instrument very largely do not have one. Absence of a figure is not evidence that the offence is unused.

Status and lifecycle

Current status
Status not determined
Made
13 December 2006
In force from
1 January 2007
Extent
Not stated

How this was established: read from the text as made; no revised version available, so later revocation could not be ruled out.

What the instrument is for

(This note is not part of the Regulations) — the explanatory note published with the instrument, © Crown copyright.

These Regulations make provision in relation to the entitlement of nationals of Bulgaria and Romania to reside and work in the United Kingdom on the accession of those states to the European Union on 1st January 2007. Part 1 of the Regulations (regulations 1 to 5) contains general provisions applicable to the Regulations. The Regulations will come into force on 1st January 2007 (regulation 1(1)). Regulations 1(2), 2, 3 and 4 contain definitions of expressions used in the Regulations. In particular regulation 2 defines “accession State national subject to worker authorisation”. Bulgarian and Romanian nationals who are accession State nationals subject to worker authorisation will require authorisation during the accession period (1st January 2007 to 31st December 2011) in order to be able to work in the United Kingdom (the authorisation requirements are set out in Part 3 of the Regulations). Regulation 1(3) and Schedule 2 provide for the consequential amendments that are required to take account of the accession arrangements. Regulation 5 states that regulations 6, 7 and 9 of the Regulations derogate from the free movement of worker provisions of European Community law. The Accession Treaty for Bulgaria and Romania (signed in Luxembourg on 25th April 2005) provides that existing member States can, as a derogation from the usual position under European Community law, regulate access to their labour markets by nationals of Bulgaria and Romania and make consequential adjustments to their ancillary rights of residence. This derogation can be applied for a transitional period of five years (that is from 1st January 2007 to 31st December 2011), with provision for a member State to continue to maintain restrictions for a further two years in the case of disturbances to its labour market. Part 2 of these Regulations (regulations 6 to 8) deals with the immigration aspects of Bulgarian and Romanian accession. Regulation 6 provides that Bulgarian and Romanian workers who are subject to the worker authorisation scheme set out in Part 3 of the Regulations will, during the transitional period, only have a right to reside in the United Kingdom by virtue of their worker status whilst they are working in accordance with that scheme. Work seekers from these States and workers who cease working will not have a right to reside by virtue of their work seeker or ex-worker status. Regulation 7 deals with the issuing of European Community residence documents to Bulgarian and Romanian nationals and their family members during the transitional period. Regulation 8 makes transitional provision to take account of the fact that on 1st January 2007 Bulgarian and Romanian nationals and their family members will generally fall to be treated under the immigration regime applying to European Union nationals rather than under the third country national immigration regime set out in the Immigration Act 1971. Part 3 (regulations 9 to 15) sets out the accession State worker authorisation scheme, which will apply during the transitional period to Bulgarian and Romanian nationals who require authorisation to work in the United Kingdom. Regulation 9 provides that an accession State national subject to worker authorisation is only authorised to work in the United Kingdom if he or she holds an accession worker authorisation document and is working in accordance with the conditions set out in the document. Leave granted under the Immigration Act 1971 before accession will count as such a document, as will a seasonal agricultural worker card issued to agricultural workers coming to the United Kingdom to carry out short term agricultural work. In other cases an accession worker card issued under regulation 11 will be required. Regulations 10 and 11 sets out procedure for the issuing of accession worker cards. Such cards will only be issued in relation to the authorised categories of employment set out in Schedule 1 to the Regulations or to an authorised family member. The authorised categories of employment cover the categories of employment in relation to which leave to enter or remain is issued under the Immigration Act 1971. Thus where authorisation is required it will generally be subject to the same conditions and restrictions as applied before accession. An authorised family member is a person who will be authorised to work on the basis that a member of his or her family has already been authorised to work in the United Kingdom or has a right to reside as a self-employed or self-sufficient person or as a student. Again this is similar to the pre-accession practice under the Immigration Act 1971. Regulation 12 makes it an offence for an employer to employ an accession State national subject to worker authorisation in breach of the worker authorisation scheme. Regulation 13 makes it an offence for such a worker to work in breach of the scheme. Regulation 13 provides for the issuing of penalty notices offering the opportunity for a person to discharge his or her liability to conviction by paying a penalty. Regulation 14 makes it an offence for a person to obtain an accession worker card by deception. Regulation 15 sets out the search, entry and arrest powers that are to apply in relation to offences under regulations 13 and 14.

Read the full note and every offence in this instrument

Other offences in the same instrument

How this was identified as an offence

Everything above rests on the judgement that this provision creates a criminal offence, rather than mentioning one. That judgement is made by rule, from the words of the provision, and this is the rule that made it — with a confidence of 0.92.

Basis
the provision says a person is “guilty of an offence”
Confidence
0.92 of 1.00

A provision that states a penalty for an offence created elsewhere can read very like one that creates an offence, and the rules can mistake the one for the other. If the text quoted above sets a penalty for something made an offence by another provision, treat the classification on this page with that in mind, and read the instrument.

Check the source