SPEEDREAD: Where the Home Office finds that a UK employer has employed individuals without a right to work in the UK, and/or the business has not carried out correct (follow up) right to work checks, they may be issued with a civil penalty of up to £20,000 per illegal worker.
When Immigration Enforcement, a part of the Home Office, receives intelligence that a UK employer is suspected of employing illegal workers, they will usually visit the premises unannounced. If the Home Office discover that illegal workers are working in the UK for a business, and compliant right to work checks have not been carried out, the employer may receive a “referral notice” advising further action may be taken which might include:
- No action notice being issued – no penalty
- A warning notice being issued – no penalty
- Civil penalty being issued – penalty of up to £20,000 per illegal worker
When issuing a civil penalty, the Home Office calculates the fine according to a sliding scale and will take into account various factors such as whether the business is generally compliant, and whether the business was co-operative or not in the process. The Home Office will also consider whether effective right to work check practices were/ are in place. The starting point for a civil penalty will be £15,000 or £20,000 per illegal worker, depending on whether the employer has previously offended or not, and if so, when the last offence took place.
Receiving a civil penalty can be very daunting as there will be a substantial fine, and the possibility of criminal sanctions. In addition, UK businesses who hold a Tier 2 sponsor licence run this risk of having this revoked and be subject to a 12 month “ban” which prevents the business from sponsoring non-EEA nationals. There is also the possibility of a “PR nightmare” as the Home Office do “name and shame” UK employers who have not been compliant with the immigration regime.
The Home Office regularly issues statistics showing the number of penalties issued, the number of illegal workers found, and the value of the penalties issued. The data is also divided into regions: Wales and the South West; London and the South East; Midlands and East; North East, Yorkshire and Humberside; Scotland and Northern Ireland; and North West. The published information effectively “names and shames” UK businesses who have generally exhausted all their objection and appeal rights.
Between 1 April 2018 and 30 September 2018, there were 7 Surrey-based businesses who had been “named and shamed” out of a total of 90 businesses in the London and South East Region. The rest of the UK saw over 130 businesses “named and shamed” in the same period. It may be that these businesses simply decided to accept the civil penalty in the first instance. On the other hand, it may be that some of these businesses objected to the civil penalty and/or appealed but were not successful outright or at all.
If a UK employer receives a civil penalty, they should take immigration advice as soon as possible to consider their options such as objecting and/or appealing against the civil penalty within strict deadlines. A successful objection could potentially lead to the penalty being reduced or being cancelled altogether. On the other hand, the penalty may be maintained or indeed increased.
The best practice is therefore to ensure effective and compliant right to work checks are conducted prior to any individual’s employment commencing regardless of nationality to avoid potential discrimination claims, and conducting follow-up checks as appropriate. It would be best to diarise dates to conduct follow up checks and ensure records are kept, which are easy to access, should a UK employer be visited by Immigration Enforcement to minimise exposure.
We can assist with all matters of business immigration including: assisting with right to work checks/ procedures; immigration compliance; and challenging a civil penalty notice for illegal working. If you have any questions, require immigration assistance, and/or would like to subscribe to the immigration newsletter please do not hesitate to contact Vincent Chung: email@example.com.