As a UK employer you are under a duty to prevent illegal immigration by carrying out right to work checks. In this way you can ensure that both prospective and existing employees are lawfully allowed to work in the UK and undertake the work on offer.
Any failure to carry out these document checks correctly, or at all, can result in significant civil and criminal sanctions. It is therefore important to understand how to carry out these checks correctly, as well as the consequences of any failure to do so.
How to avoid illegal immigration in the workplace
Right to work checks have to be carried out for all prospective and existing employees. By correctly carrying out right to work checks, and where necessary rechecking, you will be able to establish and retain a statutory excuse in the event that any individual is found to be working illegally.
To carry out a prescribed document check, the following steps must be followed:
- Obtain an original document, or combination of documents, in accordance with the Home Office approved list.
- Check the validity of that documentation in the presence of the holder.
- Make and securely retain a clear copy of the documentation electronically or in hardcopy.
- Make a contemporaneous record of the date on which you conducted your check.
- Retain your copies and records for the duration of the individual’s employment, and for a further 2 years after they leave.
When checking the validity of an employee’s proof of right to work, you must ensure that the documentation is genuine, that the person presenting the documentation is the rightful holder and the expiry dates for permission have not expired.
In some cases, to help prevent illegal immigration in the workplace, you may also need to verify the employee’s right to work with the Home Office Employer Checking Service.
Responsibility for performing right to work checks is with you where you are 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 in the event that the check is not carried out correctly and the employee in question is found to be working illegally.
Civil sanctions against employers for illegal immigration
Under the Immigration, Asylum and Nationality Act 2006 you may be liable for a civil penalty if you employ someone who does not have permission to work in the UK or undertake the work on offer.
By carrying out a prescribed document check you may be able to establish a statutory excuse, save except where 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.
When checking an employee’s proof of right to work, you are not expected to be an expert in identifying illegal immigration. If you are provided with a false document you will only face a civil penalty if it is ‘reasonably apparent’ that it is not genuine or does not belong to the holder.
If you fail to carry out a right to work check 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.
A civil penalty will be calculated on the basis of a sliding scale. This takes into account any compliance record and mitigating factors. If you are able to demonstrate that you have effective practices in place, that you have reported your suspicion about any illegal worker(s) and have actively co-operated with the Home Office, the civil penalty may be reduced to the minimum level of a warning notice. However, this will only apply if you have not been found guilty of illegal immigration in the workplace within the previous 3 years.
If you are found liable for a fine, you will be issued with a civil penalty notice. This will set out the total amount that you are required to pay and the date by which payment must be made. If you do not pay your penalty in full, or by instalments by the specified due dates, the Home Office may commence enforcement action against you.
Criminal sanctions against employers for illegal immigration
Following recent legislative changes, employers can now also face hefty fines and significant custodial sentences if they knew, or had reasonable cause to believe, that an employee did not have permission to work in the UK or undertake the work on offer.
Prior to the change in the law, employers would only be prosecuted if it could be proved they actually knew an illegal worker did not have permission to work. In practice, prosecutions were rare because it was very difficult to demonstrate that an employer was aware of any illegal immigration.
The new legislation widens the scope for prosecution and increases the maximum penalty. On conviction for employing an illegal worker you may now face up to 5 years’ imprisonment and/or an unlimited fine.
Additional consequences of illegal immigration in the workplace
In addition to any civil or criminal sanctions imposed for illegal immigration in the workplace, you or your business may also face the following consequences:
- A loss of sponsor status and revocation of any sponsorship licence to employ overseas workers.
- The potential disruption to your business by way of loss of staff, including any workers found to be working illegally, or other migrant workers no longer permitted to work for you following any loss of sponsor status.
- The imposition of an illegal working closure notice. Under new rules immigration officers have tough new powers to close down a business found to be employing illegal workers where there is a history of illegal immigration in the workforce.
- An adverse impact on your ability to obtain credit or act in the capacity of a company director, in the event that any enforcement action is taken against you for non-payment of a civil penalty.
- Serious reputational damage to your business, where the Home Office publishes the identity of employers guilty of illegal immigration in the workplace, including the level of fine.
Are you an employer with a question about illegal immigration? We can help!
Failing to correctly carry out a right to work checks can have serious consequences for your business.
If you find yourself facing allegations of illegal immigration, you should seek legal advice immediately. Securing expert advice from an immigration law specialist can be key in challenging a civil penalty, in particular, whether you have a right to object or appeal against a civil penalty notice.
DavidsonMorris specialise in helping employers handle Home Office allegations of illegal immigration and advise on measures required to ensure compliance with your right to work duties. Contact us for help and advice with your immigration compliance.