Illegal working in the UK: what employers need to know about Civil Penalties
With the UK immigration landscape constantly shifting you may be concerned about unknowingly employing someone illegally.
All UK employers have a duty to prevent illegal working by checking that their employee has the right to work in the UK. With the end of free movement fast approaching (and with it, the requirement for many European workers to meet domestic immigration law requirements), 2021 is likely to see even more UK businesses facing the consequences of illegal working.
What are the risks of employing someone illegally?
Employing persons who do not or no longer have the right immigration status to work here may lead to an eye-wateringly high fine, known as a 'civil penalty'. In the most serious cases, employers may face a prison sentence, closure of the business and seizure of earnings made as a result of illegal working.
What is a civil penalty?
A civil penalty is a fine imposed by the Home Office of up to £20,000 per employee found to be working illegally. If you are found liable, you will be issued with a Civil Penalty Notice setting out the total penalty amount you are required to pay.
How is a civil penalty calculated?
The civil penalties imposed by the Home Office are intended to be proportionate to the level of non-compliant behaviour and are therefore calculated on a sliding scale. Mitigating factors, such as reporting the breach yourself and actively co-operating with the Home Office, can reduce the penalty amount. Undertaking a prescribed right to work check normally gives an employer a statutory excuse against the penalty, in which case no action should be taken.
How do I check if an employee has a right to work?
It is imperative to follow the Home Office 'Right to work checks: employer guidance' which sets out a list of the documents accepted for the purposes of demonstrating a right to work and what records must be kept of such documents. Due to COVID-19 there are temporary changes to the way you can check documents (such as obtaining digital copies and making checks via video call).
If an employee is not able to provide any of the prescribed documents (e.g. if they have an outstanding application or appeal with the Home Office) then employers can use the online Employer Checking Service.
What should I do if I am issued with a Civil Penalty Notice?
Act fast! In any event, you must take action within a strict 28-day deadline in one of three ways:
- Object to the penalty and challenge the fine
- Make a request to the Home Office to pay the Civil Penalty under a payment instalment plan, or
- Pay the penalty in full
Speak to an experienced immigration solicitor if you’re unsure what action to take. However, it should be noted that there is no possibility of extending the 28-day deadline so it is imperative that you act without delay.
I want to challenge a Civil Penalty Notice…
If you choose to object to the penalty and challenge the fine through an appeal, the Home Office may decide to increase the initial civil penalty amount. It is therefore imperative that you take proper legal advice to assess the merits of your position.
Can you help me navigate this?
Aside from the financial cost of a civil penalty there is a very real risk of reputational damage, not to mention the emotional strain for any business owner having to face such penalties. So, whether you are unsure of an employee's right to work, or you have received a Civil Penalty Notice, contact us to help guide you through the process.