Immigration fines for employers and landlords: what is a “reasonably apparent” forgery?

Ryanair has scored a victory in the High Court against fines issued by the Home Office to carriers for allowing people to travel to the UK without proper immigration permission. The airline challenged a fine of £4,000 for allowing two Albanian nationals to fly to the UK.

The judgment criticises the Home Office’s “inconsistent” approach, and the expectation that airline staff should be able to recognise forged documents in the absence of proper guidance.

There has been speculation that this decision could ultimately be used by employers and landlords who have to check documents for employees or tenants under the UK’s immigration laws.

The guidance issued to carriers (“Charging Procedures: a Guide for Carriers” November 2014) about their liability to fines says that carriers can avoid a fine if a passenger uses forged documents, unless: “… it were of a standard which a trained representative of the carrying company, examining it carefully but briefly and without the use of technological aids, could reasonably be expected to detect.”

There is similar guidance issued to employers and landlords about spotting forgeries. Employers and landlords can defend against a fine if they saw and copied certain specified documents, and it was not “reasonably apparent” that they were forged. FAQs for employers issued in May 2015, for example, says that a forgery is “reasonably apparent” if “an individual, who is untrained in the identification of false or forged documents, examining it carefully, but briefly and without the use of technological aids, could reasonably be expected to realise that the document in question is not genuine.”

It appears that the problem that carriers face is the inconsistency of training and advice provided by the Home Office so that staff checking travel documents might not have the right level of training to allow them to use the excuse that a forgery was not “reasonably apparent”.

The existing rules for employers and landlords are already more generous that this in that they recognise that checks are performed by “untrained” people. However, this must be set in the context of the copious and frequently-updated guidance provided by the Home Office. It is likely that there will be more argument in future about what constitutes a “reasonably apparent” forgery under the “Right to Work” and “Right to Rent” regimes.

For more advice on this and other compliance topics, please contact me on 07752 722 292.


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