In 2015, the government unveiled Operation Magnify, designed to target those suspected of using undocumented migrant workers in three sectors, including construction. The Operation involves contacting Construction firms and asking for them to co-operate and disclose data about their current and previous employees and contractors.
Last week, we were contacted by a firm based in London who initially co-operated with the immigration officials in a surprise audit and received a bill of good health. In October, the CEO was informed that he had the correct processes in place and although three individuals were identified as holding fake passports, the CEO was advised that the fakes were of a very high standard and they would not have expected the person conducting the right to work checks to spot the fakes.
Last week, out of the blue, they received a £30,000 Civil Penalty, also known as a Penalty Notice.
Naturally, the company intends to appeal the Civil Penalty Notice, but this is costly and time consuming.
In this article we are focussing on: the impact of the UK Visas and Immigration (UKVI) spotlight turned sharply on the construction industry; how much of a risk does this pose for the industry and how can companies in the sector ensure that they are not caught out by Operation Magnify.
Construction’s Migrant Workforce
Operation Magnify is part of the Immigration Bill currently passing through parliament, which is the centrepiece of the government’s plan to make the UK ‘a hostile environment’ for undocumented migrants. Immigration minister James Brokenshire wrote in Building magazine, explaining why construction is being targeted: “We know the nature of construction work means that the industry can be particularly exposed to the risk of illegal employment, due to historical skill shortages, reliance on transient labour, and forged identity documents being used to gain access to work.”
Indeed, migrants play a crucial role in the construction industry, where a dearth of skills not only continues but is set to rise, as the sector bounces back from recession. The Construction Industry Training Board, whose role includes addressing skills shortages, says that the forecast rise in UK building activity between 2015 and 2019 means that the industry’s headcount must increase by almost 224,000.
Construction sector employers believe that the supply of domestic workers cannot fulfil this requirement. Foreign workers, as well as being more flexible to move from region to region as and when projects occur, also bring skills that are sometimes unavailable domestically. For example, one senior manager at a major British engineering consultancy says: “The looming skills gaps for mechanical, electrical and plumbing engineers will be filled largely by people coming from overseas — which is very welcome because some of these engineers, for instance those from Russia and Poland, are better trained that their British counterparts.”
Increased Risk
With migrants being so vital for construction — and hence for the wider UK economy — the sector absolutely must keep on employing them. Yet this does increase the risk of law-abiding construction companies unwittingly employing undocumented workers. This would be undesirable at any time, but in the context of the government’s high profile crackdown, the construction industry needs to address this risk with new urgency.
Construction faces particular challenges in checking that workers have the right to work, above all because companies of all sizes work with subcontractors and many use workers supplied by agencies. In addition, smaller projects can be carried out on a less formal basis, with workers brought in briefly and paid cash-in-hand.
Immigration law requires a migrant’s ‘main sponsor’, a company registered as such with the Home Office, to conduct Right to Work checks. This has created a tendency in the construction industry where companies higher up the supply chain, such as a Main Contractor or the client commissioning the project, do not conduct checks on employees who are on their building site but not employed directly. This tendency is exacerbated by construction being a low profit margin and highly time-pressured business.
However, failing to check could lead you to fall foul of the law – especially in light of the government crackdown on undocumented workers, which appears to be gathering increasing momentum. This is because immigration law still requires companies to demonstrate that they are satisfied that workers in their supply chain have the legal right to work.
Moreover, the Civil Penalty for being found responsible for employing undocumented workers are severe, including up to £20,000 for each person employed by the company without right to work in the UK, whether knowingly or not. Meanwhile, if you are deemed to be employing an undocumented worker knowingly, this is a criminal offence punishable with up to two years in prison.
In addition, there are the risks of business interruption and reputation damage. The Home Office has made clear that raids where undocumented workers are discovered will be publicised and the relevant construction site could be shut down indefinitely until UKVI have completed their investigations.
UKVI also already conducts what it calls ‘unspecified visits’ to sites, which are surprise inspections where immigration officers ask to see employers’ records and require workers themselves to provide evidence of their right to work.
Immigration officers need a warrant to search your site but this is straight forward for them to obtain. Neither does the Data Protection Act prevent you handing over workers’ information in this context. As a government agency, UKVI has the power to request all such data.
How to Prepare
Right to Work checks are not straight forward. There are many different types of visa and spotting a fake passport or ID can be difficult.
Also a person’s immigration status can change for reasons such as a visa expiring, so it is essential that firms continue to check that migrants continue to have the right to work in the UK. Companies are also legally obliged to keep any foreign employee’s records for two years after they leave the organisation.
Effective record-keeping and a robust monitoring system to ensure compliance are therefore critical – and should be fundamental elements in the company’s human resources (HR) function. If you are not certain that your processes are exactly as they should be, feel free to contact us and we will conduct a dummy audit of your records and monitoring system.
What if I Fail to Spot a Forgery?
Would-be workers with forged identity documents are not uncommon in construction. It is clear that it is fairly easy and cheap to obtain a fake passport or fake visa to put inside a genuine passport. This raises the concern that even construction companies doing their best to check that migrants have the right to work could find that, unintentionally, they become involved with undocumented workers.
However, the legal system recognises that an HR officer is after all not an immigration specialist and might not spot that a document is forged if it is not obvious. Indeed, there are a number of statutory excuses that an employer can use to defend against a fine for employing an undocumented worker.
It is essential, though, that construction companies carry out reasonable checks to ensure that migrants have the right to work. Companies must also be able to show that they conduct such checks. In cases where a worker’s visa has expired, the company must show that it is taking steps to rectify the situation, for example by renewing the visa. So again, good record keeping is a must.
Conclusion
One more reason for ensuring that the people you work with have the correct documents is that it is an ethical duty to do so. Undocumented workers could be victims of exploitation and indeed modern slavery, since many such workers are being controlled by gangs, with their wages delayed and limitations on their freedom of movement while they are housed in inhumane conditions.
Chris Blythe, Chief Executive of the UK’s Chartered Institute of Building writes in the organisation’s Modern Slavery report published earlier in 2015: “Slavery is… a problem on UK construction sites. Home Office officials tell me that many in positions of influence and power are turning a blind eye to obviously forged documents, even on large scale projects. In doing so, they are not only colluding in exploitation, they are supporting organised crime.”
As well as the ethical dimension, this adds another, severe, risk to the reputation of your organisation and that of the entire sector. So it really is vital that construction companies ensure that all those that they work with have the legal right to work in the UK. This means using an effective checking system when workers start and then maintaining ongoing monitoring to ensure that your organisation continues to comply with immigration law. Putting such systems in place now — or enhancing existing systems — will mean that your organisation is well-prepared for Operation Magnify.
How We Can Help
Have you received a Civil Penalty and unsure what to do? We have the experience to advise you on challenging the decision, as well as recommendations on actions to take to avoid a repeat of the situation in future.
Contact us today on 020 7494 0118 or via info@davidsonmorris.com.
Author
Founder and Managing Director Anne Morris is a fully qualified solicitor and trusted adviser to large corporates through to SMEs, providing strategic immigration and global mobility advice to support employers with UK operations to meet their workforce needs through corporate immigration.
She is a recognised by Legal 500 and Chambers as a legal expert and delivers Board-level advice on business migration and compliance risk management as well as overseeing the firm’s development of new client propositions and delivery of cost and time efficient processing of applications.
Anne is an active public speaker, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals
