Immigration, Asylum and Nationality Bill

When I first saw that this is described as a civil penalty, my suspicious mind caused me to wonder whether that was in order to erode due process in any way. But having studied the Bill carefully, I think that on the contrary the requirements of Article 6 of the European Convention on Human Rights, for example, are fully met. In the first place, I understand that the burden is upon the state to show that the penalty is justified, as provided in Clause 15. The burden is not on the employer; rather it is on the state. Secondly, the notice gives a fair warning of what is involved in Clause 15. Thirdly, the notice of objection is perfectly reasonable. Fourthly, when one comes to the appeal, it is not restricted in an unfair way because the employer can argue either that he is not liable and may therefore be excused or that the level of the penalty is too high. Lastly, Clause 17(3) is very welcome because it states that the appeal is to be a re-hearing, not just an appeal in the formal sense, but a re-hearing of the Secretary of State’s decision to impose the penalty. In those circumstances, we have full natural justice embodied in the Bill and therefore I do not think that, in terms of due process, the scheme is objectionable—provided that the code of practice itself emphasises fairness and proportionality.