Civil Penalties for Employing An Illegal Worker: How Employers Can Avoid Fines
In This Article
1. UK Civil Penalties for Illegal Working
UK employers will face a civil penalty if they employ (or continue to employ) someone who does not have the right to work, or who is working in breach of the conditions of their immigration permission. The civil penalty regime sits primarily under sections 15–25 of the Immigration, Asylum and Nationality Act 2006, and is enforced by Home Office Immigration Enforcement.
2. 2024–25 Civil Penalty Increases for Employers
Since 13 February 2024, penalties have risen sharply. The Home Office can now fine employers up to £45,000 per illegal worker for a first breach, and up to £60,000 per worker for repeat breaches. Due to the high penalty levels, for many businesses, especially SMEs, a single error can be hugely problematic.
Recent enforcement reporting shows Home Office willingness to issue high penalties even where the breach was inadvertent and as a result of human error / inadequate systems. Therefore, it is more important than ever for employers to review their right to work practices to ensure that they are compliant and provide a statutory excuse for illegal working.
3. Understanding the Statutory Excuse for Illegal Working
The statutory excuse is a key protection against liability for the employment of illegal workers. If you carry out prescribed right-to-work checks correctly, before employment starts (and follow-up checks where required), you will normally avoid liability for a civil penalty. This article is an overview of how employers can ensure that right to work checks are correctly carried out and how to build that excuse into your hiring and HR systems.
4. Common Employer Mistakes That Trigger Civil Penalties
Home Office investigations often uncover problems that are basic but easy to miss, including:
- Checks done late (after day one, or after training/“trial shifts”).
- Using the wrong method (e.g. accepting BRP or ARC cards that must now be checked online).
- Inadequate record keeping (no dated evidence of what was checked and when).
- Failure to repeat checks (where permission is time-limited).
- Impersonation risk (in digital checks if identity isn’t matched to the individual in front of you).
These mistakes can occur even when employers are trying to do the right thing by undertaking a right to work checks. Therefore, it is important to ensure that you have proper systems and procedures in place to avoid any of the above errors taking place and that the statutory excuse is in place.
5. Conduct Right-to-Work Checks Before Employment Starts
A compliant check must be completed before the person starts work. This includes where a worker undertakes unpaid trials, shadowing, internships or even where they are contractors (where they are effectively employees, or could be seen to be).
Employers should add a right to work check to their pre-employment checks.
6. Choosing the Correct Right-to-Work Check for Each Worker
There are three ways to conduct a right to work check. The correct way will depend on the individual and their status in the UK. It is essential that the correct right to work check is carried out for the proposed worker as using an incorrect method may void the statutory excuse.
For British / Irish citizens, you can use acceptable physical documents or you can use the online Digital Identity Service Provider (IDSP) if you use a certified provider.
For migrants who hold an e-Visa or digital status, employers will be able to conduct an online right to work check. The proposed employee will be able to provide you with a share-code, which will enable you to conduct an online right to work check. It is no longer permitted to undertake a manual right to work check for these migrants (i.e. just checking and copying their identity document and BRP). Employers also need to check the identity of the proposed employee, ensuring their photograph and details in their identity document show the same person as the online check.
For those who cannot use the online right to work check, for example because they have an outstanding appeal or application, employers should use the Employer’s Checking Service. This is not an instantaneous check, and can take up to five working days to receive. The statutory excuse is only established when you have a positive verification notice. Positive checks will also set out any limitations to a person’s right to work (e.g. if an individual can only work a limited number of hours, or if they can only work for a sponsoring employer), so it is important to check that notice carefully before employment commences.
7. Step-by-Step Process for Compliant Right-to-Work Checks
Whether online or manual, a compliant check follows the following steps:
- Copy and keep a clear record, dated, with the checker’s name.
- Obtain the correct evidence (share code / original documents, as applicable).
- Check validity in the presence of the person (or via live video link for online checks), ensuring the photo matches them and the permission covers the role.
8. Preventing Identity Fraud in Right-to-Work Checks
A growing risk area is imposters using genuine share codes belonging to someone else. The Home Office expects employers to be alert to this. Accordingly, employers should ensure that they compare the digital profile photo to the candidate carefully, keep a contemporaneous note confirming likeness, and train staff on red flags (rushed candidates, refusal to show face clearly on video, inconsistent personal details).
9. Diarising and Completing Follow-Up Right-to-Work Checks
If someone has time-limited permission, your statutory excuse expires unless you repeat the check at the right time. Employers should make a note of any permission expiry dates and check in with the worker prior to this date to ensure that the worker is making an appropriate application in-time. Employers may wish to consider using a dedicated calendar with notifications to manage this and assigning specific employees to manage the process.
10. Conducting Periodic Internal Right-to-Work Audits
It is recommended for employers to conduct periodic internal audits. By conducting regular audits, it increases the likelihood of mistakes being made and deadlines being missed. We recommend auditing your files at least annually, or more regularly if possible.
11. Training Staff to Ensure Right-to-Work Compliance
Civil penalties often follow from where a member of staff who is not familiar with the correct processes improvises a check without reference to the guidance. For this reason, it is good practice to ensure that all staff who are involved in hiring or onboarding are trained in this area. Refresher training should also be offered every 12 months.
Employers should also consider adapting their own policy documents and procedures to ensure proper compliance.
12. Extending Right-to-Work Compliance to Contractors and TUPE Transfers
Employers may still be exposed if:
- you know or have reasonable cause to believe someone is working illegally through a contractor;
- you take on staff via TUPE or acquisition without re-checking where required.
13. Responding to a Civil Penalty Notice
If you are issued with a Civil Penalty Notice, you should consider whether to seek legal advice. It may be possible to object and appeal the notice, depending on the circumstances. If an objection is not possible / appropriate, employers should ensure that the fine is paid as soon as possible. Faster payment discounts are available (currently 30%).
14. Employer Checklist for Right-to-Work Compliance
In summary, you can use the following simple checklist to make sure that you stay compliant with your duties as an employer:
- Conduct the right to work check before the worker starts employment.
- Use the correct method (online/manual/IDSP).
- Confirm that the photo and the person are the same.
- Note any conditions of a worker’s permission and ensure that the employment you are offering them complies with these.
- Save a copy of the right to work check in your files.
- Diarise to conduct a follow-up check, where applicable.
- Conduct periodic internal audits to ensure compliance.
15. Contact our Immigration Barristers
For expert advice and assistance in relation to right to work checks and the right to work, contact our immigration barristers in London on 0203 617 9173 or via the enquiry form below.
16. Frequently Asked Questions
What are civil penalties for employing an illegal worker?
UK employers can face Civil Penalties if they employ someone who does not have the right to work or who is working in breach of their immigration conditions. These penalties are enforced by the Home Office under sections 15–25 of the Immigration, Asylum and Nationality Act 2006.
How much can civil penalties cost?
Since 13 February 2024, fines can reach £45,000 per worker for a first breach and £60,000 per worker for repeat breaches. Recent enforcement shows that even inadvertent errors, caused by human mistakes or inadequate systems, can result in penalties.
What is the statutory excuse?
The statutory excuse provides protection against civil penalties when employers carry out prescribed right-to-work checks correctly before employment begins and perform any required follow-up checks. Following these processes ensures that employers normally avoid liability.
When should right-to-work checks be completed?
Right-to-work checks must be completed before a worker starts employment. This requirement applies not only to paid roles but also to unpaid trials, internships, shadowing, contractors, and staff taken on through TUPE transfers or acquisitions.
What types of right-to-work checks are available?
The type of check depends on the worker’s immigration status. British and Irish citizens can be verified using physical documents or an online check via a certified Digital Identity Service Provider. Migrants with an e-Visa or digital status must undergo an online check using a share code. Workers who cannot use the online system, such as those with pending applications or appeals, should be verified through the Employer’s Checking Service.
How can employers avoid mistakes during checks?
Common errors include carrying out checks late, using the wrong verification method, failing to keep adequate records, not repeating checks when permission is time-limited, and identity fraud. Employers can avoid these mistakes by following the three-step process: obtaining the correct evidence, verifying it in the presence of the worker, and keeping a dated record of the check.
Do civil penalties apply to contractors and transferred staff?
Yes, employers may still be exposed if they knowingly hire someone working illegally through a contractor, agency, or by taking on staff via a TUPE transfer or acquisition without re-checking their right to work.
What should employers do if they receive a Civil Penalty Notice?
If a Civil Penalty Notice is issued, employers should consider seeking legal advice and determine whether it is possible to object or appeal. If an objection is not appropriate, the fine should be paid promptly, as faster payment discounts of up to 30% may apply.
This article was co-written by Georgina Griggs and Lucy Katko
Please note that the information provided in this article is for general guidance only and is based on the immigration rules and policies in force at the date of publication. Immigration law and Home Office policy can change frequently, and requirements may vary depending on individual circumstances. Legal advice should always be sought in relation to your specific situation.
