Mark Harper –
Holding himself
higher?

10 February 2014

Over the course of the weekend, Immigration Minister Mark Harper resigned from his post after recognising his cleaner did not have permission to work in the UK. He claims to have not broken the law but rather ‘holds himself to a higher standard than that expected of others’ and thus his resignation was the only way forward.

The Minister began employing his cleaner in 2007 and at the time he purports to have seen and taken copies of a letter detailing the cleaner’s indefinite leave to remain and associated right to work. Subsequently in 2010 and in 2012 he considered re-confirming this right again but apparently failed to follow through with his deliberations.

Last month, given the prominence of the imminent Immigration Bill he decided it best to check the cleaner’s right to work again and upon doing so realised he could no longer produce a copy of the aforementioned letter.  After receiving it again from his cleaner, his private team were asked to confirm that all was in order, at which point they discovered Mr Harper’s cleaner did not have the right to work based on the document she had provided.

At the time Mr Harper began employing his cleaner the relevant law was the Asylum and Immigration Act 1996. This Act made it a criminal offence to employ a person who did not have permission to work, although a statutory defence could be raised if:

1. Before employment began, a document was produced that appeared to relate to the employee and to be of the description specified in an order made by the Secretary State; and
2. Either the document was retained or a copy was made.

Without these defences the employer is liable for prosecution and a fine up to £5,000. However, at the crux of Mr Harper’s claim to have not broken the law is the posit that his cleaner was self-employed and thus he is not subject to the above criminal proceedings as an ‘employer’.

Unfortunately for the Minister, the 1996 Act does include information as to what may be considered an employment relationship. Under the Act, a contract of service such as that one may have with a cleaner, can be viewed as an employment relationship. Thus Mr Harper could be deemed to have been an employer.

It is clear that the Immigration Minister’s claims of never having broken the law are questionable, with the definition of ‘employment’ being highly debatable. It has certainly been a ‘live by the sword die by the moment’ for Mark Harper. Furthermore it begs the question “if the Minister for Immigration can’t carry out a right to work check correctly, how can thousands of employers and landlords have a hope of unravelling our complex immigration system?”

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