Commentary on Sections Offences Section 6: Employment
34.Subsection (1) amends section 8 of the Asylum and Immigration Act 1996, the principal statutory control on illegal migrant working, to make the offence in that section, which was previously triable summarily only, triable either way. It is a criminal offence under section 8 of the 1996 Act to employ a person subject to immigration control who has attained the age of 16, if (a) the employee has not been granted leave to enter or remain, or (b) the employee’s leave is not valid and subsisting or is subject to a condition precluding him from taking up the employment. As a summary offence, the maximum penalty on conviction was a fine of up to level 5 on the standard scale. By enabling more serious cases to be tried on indictment (following conviction on which there is no limit to the level of fine that can be imposed), this provision effectively increases the maximum penalty which the courts may impose in these cases.
35.Subsection (2) makes a consequential change to the time limit for prosecution of the section 8 offence. The normal rule in relation to offences which are triable summarily only is that proceedings must be instituted within 6 months of the commission of the offence. Section 8(9) of the 1996 Act (inserted by section 147 of the Nationality, Immigration and Asylum Act 2002) applies the extended three year time limit for prosecutions contained in section 28(1) of the Immigration Act 1971 to the section 8 offence. However, it is a general principle of law that there is no time limit for the commencement of criminal proceedings in respect of offences which are triable either way. Subsection (2) therefore disapplies the extended time limit for prosecutions in relation to the section 8 offence.