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Civil Penalty Notice Illegal Working

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Civil penalty notices are issued by the Home Office to employers found to have failed in their duties under the prevention of illegal working regime.

All UK employers are required by law to ensure that all workers are eligible to work in the UK and to undertake the job they are being employed to do. Employers meet this requirement by conducting Right to Work document checks before each worker starts employment, and carrying out follow-up checks if the individual has time-limited permission to work, for example under a points-based work visa. The employer also has to retain certain records of the document checks for inspection on request.

If the Home Office believes an employer has breached their Right to Work duties, they have powers to issue a civil penalty for illegal employment. Civil penalties for illegal working can be up to £20,000 per breach.

In addition to the significant financial penalty, employers found to be in breach of their duties could also face criminal prosecution, among many other negative ramifications.

Taking preventative compliance measures is the most effective way to avoid falling foul of immigration breaches, but if you are facing immigration enforcement action and a possible civil penalty notice for illegal working, it can be helpful to understand what the Home Office process is before you decide your next steps.

 

Stage 1: Information Gathering

If the Home Office becomes aware or suspicious of potential immigration breaches, such as from an anonymous tip-off (commonly from disgruntled former employees or unhappy customers), they have the power to act on the information by contacting you to request a visit to your business premises. The Home Office also has powers to attend premises without giving notice, as such employers are advised to keep on top of their compliance obligations in preparation for unannounced inspections.

The officers must have appropriate permission (warrant) to enter premises for the purpose of carrying out an immigration inspection. We can advise if you are unsure if the officers attending have the required paperwork and authority.

During a site visit, the Home Office can examine all HR and onboarding processes and documentation relating to Right to Work checks.

The Home Office does not need to have concrete evidence of any non-compliance or illegal working to conduct a site inspection.

Where evidence of illegal working is found, a referral will be made to the Civil Penalty Compliance Team.

The Civil Penalty Compliance Team will assess the information and evidence gathered to date, and issue an Information Request to the business for the following:

  • Confirmation as to whether you are the employer of the workers identified. If this is not the case, details are requested of the business who is employing the identified workers.
  • Confirmation as to whether Right to Work document checks have been carried out, and when they were carried out.
  • Confirmation as to whether reports were made of suspected illegal workers.
  • Confirmation as to whether you employed the identified workers and when.

 
You will be given 10 days to return the completed Information Request Response Form and supporting documents.

Your response to the Information Request will play a decisive role in the level of civil penalty issued. Instructing expert legal representation to prepare a detailed response is crucial at this stage.

For example, the Civil Penalty Compliance Team will expect you to complete only the required information in the Response Form, which does not give you the opportunity to argue against the allegations. However – we advise that representations be made, providing a detailed defence against each allegation, to be submitted alongside the Response Form.

 

Stage 2: Civil Penalty Notice Issued for Illegal Working

The Civil Penalty Compliance Team will then consider your response to the Information Request.

It may be decided at this stage that a Formal Warning Notice – with no penalty – will be issued, or a reduced civil penalty if they are satisfied that successful mitigation has taken place as a result of the information provided in the response.

If a Civil Penalty Notice is however to be issued – around 220 are served every month – you will have 28 days to make full payment, set up an instalment plan, or object to the penalty.

If you have not been found to be employing illegal workers within the last 3 years, you may be provided with the Fast Payment Option in your Civil Penalty Notice which entitles you to a 30% reduction in the penalty if payment is made in full within 21 days of the Civil Penalty Notice issue date.

As the owner of a business, you will need to decide whether it is worth outlaying the costs of instructing legal representation to object against the Civil Penalty or whether you should pay the penalty.

This decision will depend on whether there are strong grounds to object against the allegations in the Civil Penalty Notice, which will result in the penalty being reduced.

 

Appealing a Civil Penalty Notice Illegal Working 

If you receive a civil penalty for illegal working, you have 28 days to pay the fine or submit an appeal. The appeal can either be to lower the level of the original penalty, or to remove the penalty altogether.

The appeals process is, however, complex, and you have a limited amount of time to weigh up the pros and cons and make a decision based on the options open to you.

Challenges have to be made on specific grounds, within specific timeframes, and be supported by relevant documentary evidence. The approach you take should be dependent on your organisation’s circumstances and the level of the civil penalty notice you have received.

One important consideration is that the Home Office has the power to increase the level of the original penalty at the appeal stage, so you should only generally proceed with an appeal only where you are confident in the merit of your challenge following professional advice.

As an outline, the appeals process is generally made up of two key stages: first, taking professional advice on the merit of making an appeal, or whether in the circumstances (such as the nature of the breach), it would be advisable to pay the fine.  Our business immigration specialists are experienced in challenging civil penalty fines, and will assess your case before making a recommendation. If you decide to appeal, we will work with you to compile the objections and submit a response to the notice on your behalf within the 28 day period.

Grounds for objection  fall within the following:

  • The penalty relates to worker(s) who are not with your employment and you are therefore not liable for the penalty, or 
  • You are relying on a statutory excuse as you can evidence that you took appropriate actions to check for illegal workers and as such had no reason to suspect illegal working, or
  • The level of fine is unreasonable given your conduct through the investigation and your overall immigration compliance methods, as such the fine should be lowered. 

 

If the initial appeal is not successful, you can register an appeal with the County Court to have the penalty adjusted or repealed. This will involve a hearing where the evidence will be considered.

 

Need assistance? 

DavidsonMorris provides a fixed fee assessment at Stage 1 and Stage 2 of the Civil Penalty process, enabling you to determine which option will result in minimal financial loss for your business.

For guidance and support with any aspect of a civil penalty for illegal working, please contact us.

 

Civil penalty FAQs

What is a civil penalty issued under UK immigration law?

Civil penalties are fines issued by the Home Office where an employer is found to be employing people illegally.

What happens if you get caught employing someone illegally in UK?

If you are found to have knowingly employed someone illegally, you face an unlimited fine and up to 5 years in prison.

How long do you go to jail for employing illegal workers?

You can be sentenced to up to 5 years in prison if you are found guilty of knowingly employing illegal workers.

 

Last updated: 7 January 2022

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