COMPLIANCE AND CIVIL PENALTIES
All UK employers have a responsibility to avoid employing illegal workers. By carrying out appropriate document checks, employers may protect themselves from receiving a civil penalty or prosecution.
Right to work checks
Employers are under a duty to check that every employee has a right to work. You must conduct this check before your employees commence working for you. If you want to employ a worker from outside the European Economic Area, they must obtain, or already have, permission to work.
You must obtain documents from either of the Home Office’s lists, List A or List B. List A is for people who are allowed to work in the UK indefinitely. List B is for people who are only entitled to work for a limited period of time. Obtaining the correct documents and keeping copies in the prescribed format will give you a ‘statutory excuse’ against a civil penalty if you later find out that the worker does not have the right to work. If you do not obtain the exact documents listed, you will not have a statutory excuse for that worker.
You must check the documents in the presence of the holder, and before they start working for you. You must check several properties of the documents. It is good practice to record that you have checked each point.
You must make a clear copy of each document in a format which cannot be altered and retain this copy securely for not less than two years after the employment has come to an end.
If the person has time-limited permission to be in the UK and perform the work, you must carry out additional checks when that permission expires.
It is unlawful to discriminate in employment practices because of race. To avoid discrimination, you should check all potential employees’ right to work documents.
If a potential employee cannot prove their right to work then you should not employ them. If the employee already works for you, has time-limited permission to work and cannot prove their right to work in a follow up check, you should cease employing them.
If you are found to have employed a worker illegally, you may be liable for a civil penalty. Each illegal worker will attract a penalty.
The Home Office will send you a notice telling you that your case is being referred to officials who will consider your liability for a civil penalty. If you do not think that you are liable for the civil penalty, you can object to the Home Office or appeal to a court if:
- You are not liable to pay the penalty (e.g. you are not the worker’s employer);
- You have a statutory excuse (e.g. you undertook the correct document checks); or
- The level of the penalty is too high (e.g. the Home Office did not take mitigating circumstances into account).
The maximum penalty you can be made to pay is £20,000 per illegal worker (£5,000 if they are Croatian). The amount you will have to pay will depend on whether you have been found to employ illegal workers before, whether you have reported the illegal worker to the Home Office, whether you have co-operated with the Home Office and whether you generally comply with your employer duties to prevent illegal working.
Whether you have to pay a civil penalty, and how much, will also depend on when the employee commenced working with you.
There are options to pay a reduced penalty if you pay quickly, or pay by instalments. If you do not pay the penalty, object or appeal by the due dates, the Home Office will commence court action against you. If the Home Office is successful, you will have a County Court Judgment against you. This may impact upon your credit rating and affect your ability to act as a company director.
It is also a criminal offence to knowingly employ an illegal worker, or employ an illegal worker where you had reasonable cause to believe that they did not have the right to work in the UK. You may face up to five years’ imprisonment and/or an unlimited fine.
What else do I need to know about right to work checks and civil penalties?
You can avoid incurring a civil penalty by conducting appropriate right to work checks. If you have carried out suitable document checks, you will have a ‘statutory excuse’ and will not be liable for a civil penalty
Document checks will not protect you against prosecution if you knew the worker did not have permission to work, or if you could reasonably have known.
The Home Office publishes lists of all civil penalties imposed on companies. These are freely accessible to the public using the Home Office website. The Home Office often also issues press releases to local and national media, naming companies that have employed workers illegally.
If you later apply for a Tier 2 or 5 Sponsor Licence with a view to sponsoring foreign workers, any history of employing workers illegally will affect your application.
How our immigration barristers can help
Our immigration barristers are well versed in all the required right to work checks that employers must undertake. We work closely with businesses to ensure that their HR processes are robust and can help to design and audit current right to work checks in the workplace. We will simplify the process for you and help to protect you and your business from any immigration compliance issues.
If you have been issued with a Notification of Liability for a Civil Penalty, our immigration barristers can advise as to the likelihood of establishing a statutory excuse. We also assist with submitting objections to the Civil Penalty Compliance Team and provide legal representation at civil penalty appeals in the County Court.
We pride ourselves on being approachable and proactive in understanding and meeting our clients’ needs. We are a highly driven team, dedicated to providing clear and reliable immigration advice to employers as part of a professional and friendly service.
We can also assist with
Mock Immigration Audits
The Home Office analyse intelligence from Government departments and other sources to establish whether workers are being employed illegally. They may also visit your premises as part of their investigation. If you apply for a Tier 2 licence, UKVI may visit your business premises. On either type of visit, you may be asked to account for your recruitment procedures and right to work checks.
As part of of our compliance service, or as part of our sponsor licence application preparation service, a barrister with specialist expertise can undertake a mock Immigration Audit of your recruitment and HR processes in order to ensure that you have the necessary systems and procedures in place to meet your right to work checking and/or sponsorship obligations.
Sponsor Licence Applications
In order to employ skilled workers from outside the EU, UK employers must first apply to UK Visas and Immigration for a Tier 2 and/or Tier 5 sponsor licence. Non-EEA nationals must have a sponsor before they can apply to come to, or remain in, the UK for work.
Whether you require advice on the correct company-related documentation to provide in support of a Sponsor Licence Application, assistance with drafting a compelling business case that will satisfy UKVI that you need a sponsor licence in order to fill a genuine role or guidance on running a compliant Resident Labour Market Test, our immigration barristers can manage the sponsor licence application process on your behalf.
Sponsor Licence Renewals
Your sponsor licence will expire 4 years after it was granted. If you wish to continue to sponsor migrants, you will need to apply for a Sponsor Licence Renewal before it expires. It is good practice to apply at least one month before your licence expires.
You may be asked to send additional documents to UKVI. If you fail to send UKVI these documents, they may downgrade, suspend or revoke your licence. UKVI may also visit your business premises. If they have any concerns about your actions as a sponsor they may downgrade or revoke your licence. Our immigration barristers can work with you to ensure that you are able to successfully renew your sponsor licence.
Sponsor Licence Suspensions and Revocations
If UKVI believe that you are breaching your duties and pose a threat to immigration control, your sponsor licence may be suspended. If you are subject to a Sponsor Licence Suspension, you will not be able to sponsor new migrants, but your current sponsored migrants will be unaffected. UKVI may then reinstate your licence, downgrade it or revoke it.
If you are failing to meet your sponsor duties in a serious way or stop operating in the UK, your licence will be revoked. If you are subject to a Sponsor Licence Revocation, any migrants you sponsor will have their leave curtailed. They will be given 60 calendar days to find alternative sponsorship or leave the UK.
Our immigration barristers work with sponsors to secure reinstatement of their sponsor licences, ensuring that a robust case is presented to UKVI addressing any issues raised in suspension letters. If a decision has been taken to revoke a sponsor licence, our immigration barristers can advise on the merits of applying for Judicial Review of the revocation decision and, where appropriate, provide representation in Judicial Review proceedings
Sponsor Licence Refusals
There is no right of appeal against the refusal of an application for a sponsor licence.
If the Sponsor Licence Refusal decision was the result of either a caseworker error or the result of supporting evidence sent as part of your application not being considered by UKVI then our immigration barristers can assist you to request that the error be corrected and, if appropriate, submit a new online sponsor licence application.
If the decision to refuse your sponsor licence application was unlawful, unreasonable or procedurally improper, our immigration barristers can apply for Judicial Review and provide representation at Judicial Review hearings.
We also assist employers to prepare fresh applications for sponsor licences following previous refusal decisions.