Under the Immigration, Asylum and Nationality Act 2006 your business may be liable for a civil penalty if you employ someone who does not have permission to work in the UK or do the work on offer.
All UK employers are under a duty to prevent illegal working by carrying out prescribed document checks. This is to ensure that all employees are lawfully allowed to work in the UK. Failure to carry out these checks correctly can result in Home Office immigration enforcement action against the employer, such as a civil penalty for illegal working and criminal sanctions.
Below we set out the key steps for employers to ensure compliance with their duties by carrying out document checks correctly to avoid falling foul of civil penalty immigration law.
The civil penalty immigration scheme
If your business is alleged to have failed to carry out the prescribed document checks correctly, or at all, and you are found to be employing someone illegally, you may incur a civil penalty of up to £20,000 per illegal worker.
The Home Office will determine the level of breach and the amount of any civil penalty for which you may be liable on a case-by-case basis. The civil penalty notice will set out the total amount that you are required to pay and the date by which payment must be made.
A civil penalty will be calculated on the basis of a sliding scale. This takes into account any compliance record and mitigating factors.
You may also be liable to criminal prosecution if you knew, or had reasonable cause to believe, that the individual did not have permission to work in the UK or to do the work on offer. On conviction for employing an illegal worker you may face up to 5 years’ imprisonment as well as an unlimited fine.
What should I do if my business is facing a civil penalty?
In the event that you are facing an illegal working fine under the civil penalty immigration provisions, you should seek expert legal advice immediately.
Your options are to accept and pay the fine, to seek to reduce the fine by evidencing mitigating circumstances or to challenge for the fine to be cancelled.
If you can demonstrate your business has effective right to work practices in place, you may be able to rely on the statutory defence and have the fine cancelled.
If you can evidence that you have reported any suspicions about the illegal worker(s) in question and actively co-operated with the Home Office, you may be able to negotiate to have the fine reduced. Mitigating factors can reduce a penalty. Mitigating factors include the following:
- evidence of reporting suspected illegal workers
- evidence of active cooperation
- evidence of effective document checking practices.
You must respond to the Home Office by the deadline specified in the notice, either to pay your penalty in full or by instalments or to challenge the decision. Failure to engage with the Home Office by the deadline may result in further enforcement action.
How to comply with UK civil penalty immigration provisions
Right to work checks should be conducted on all prospective employees regardless of their race, ethnicity or nationality. You may still face a civil penalty if you do not carry out a check on an employee that you have incorrectly assumed has the right to work for you. You must also carry out this check before any employment with you commences.
By correctly carrying out a right to work check on all prospective employees, you will be able to establish a statutory excuse in the event that any individual is found to be working illegally. For existing employees who have time-limited or restricted permission to work in the UK, you will also need to carry out a follow-up check when any permission expires during the course of their employment.
You will be unable to rely on any statutory excuse if you knew or it was reasonably apparent that the documentation checked was not genuine, did not rightfully belong to the holder or the work was not permitted – regardless of whether you have followed the prescribed document check procedure.
Simple steps to avoid a fine under the UK civil penalty scheme
In order to avoid a fine under the UK civil penalty immigration scheme you must carry out any document check in the following prescribed manner:
- OBTAIN, ie; obtain from the prospective or existing employee an original document, or combination of documents, in accordance with the Home Office approved list (additional rules apply to student workers).
- CHECK, ie; check the validity of that documentation in the presence of the prospective or existing employee.
- COPY, ie; make and securely retain a clear copy of the documentation electronically or in hardcopy. This should be in a format that cannot be manually altered, such as a jpeg/pdf document or photocopy.
- RECORD, ie; make a contemporaneous record of the date on which you conducted your check. This can be by either making a dated declaration on the copy itself or by holding a separate record. You should also keep a record of when any follow-up checks must be made.
When carrying out right to work checks you should retain your copies and records securely for the duration of the individual’s employment – and for a further two years after they leave. These may need to be shown to the Home Office upon request to establish your statutory excuse.
Who must conduct the document checks?
Under the civil penalty immigration provisions responsibility for performing document checks is with you as the employer. You cannot delegate this responsibility to a third party, such as a recruitment agency. If a third party conducts the checks on your behalf you will be unable to establish a statutory excuse against a liability for a civil penalty.
Whilst a member of your staff can conduct a document check on your behalf, you will remain responsible for any fine under the civil penalty immigration scheme in the event that the check is not carried out correctly and the employee in question is found to be working illegally.
Should I seek legal advice if I am facing a civil penalty?
The consequences of failing to carry out a prescribed document check, or to do so correctly, can have serious consequences for both you and your business – not least the prospect of a significant illegal working fine under current UK civil penalty immigration provisions.
Your business is also at risk from serious reputational damage, particularly as the government produces figures on an annual basis for those businesses that have been issued with a penalty, naming each individual business and the total amount of the fine issued.
Securing expert legal advice from an immigration specialist can help you to remain compliant with civil penalty immigration law. Your legal adviser can help to ensure that you have carried out document checks correctly and, as such, that you are easily able to establish a statutory excuse in the event that an employee is found to be working illegally.
Legal disclaimer
The matters contained in this article are intended to be for general information purposes only. This article does not constitute legal advice, nor is it a complete or authoritative statement of the law, and should not be treated as such. Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.
Author
Gill Laing is a qualified Legal Researcher & Analyst with niche specialisms in Law, Tax, Human Resources, Immigration & Employment Law.
Gill is a Multiple Business Owner and the Managing Director of Prof Services - a Marketing & Content Agency for the Professional Services Sector.
