Fines For Employing Illegal Workers Set To Rise Significantly
On 07 August 2023, the UK Government announced that it would be increasing the maximum fines issued to employers where they are found to be employing individuals without lawful immigration status (illegal workers). Unsurprisingly, the announcement comes as a result of the Government’s determination to deter individuals who they are convinced are crossing the Channel for no other reason than to take advantage of the UK’s perceived hospitable employment and housing environments. It is also just a revenue raising tool, in line with the increase to visa application fees and the Immigration Health Surcharge fee.
The Home Secretary announced the changes, which are set to come into force in early 2024, although there is no precise date as to when they will actually come into effect. This post will set out the current rules as to conducting right to work checks, the effect of not doing so properly, the changes being introduced, and the steps employers can be taking to ensure that they are fully compliant with the requirements to conduct right to work checks.
What is the current law on conducting right to work checks?
The Immigration, Asylum and Nationality Act 2006 introduced illegal working fines for employers. Section 21 of the Act and as amended by Section 35 of the Immigration Act 2016 also sets out that an employer commits an offence where they employ someone who is disqualified from being employed due to their immigration status.
What is a right to work check and when does it have to be conducted?
A right to work check is conducted in order to determine whether an individual has the required permission to work in the UK or if they are working in the UK illegally. Someone works in the UK illegally where they:
- do not have leave to enter or remain in the UK; or
- their leave to enter or remain in the UK is:
- has ceased to be valid (for example, it has been revoked, cancelled, curtailed or has just expired due to time passing);
- or is subject to a condition which stops the person from being able to work in the UK.
Right to work checks need to be conducted before an individual starts their employment, doing so will provide an employer with a statutory excuse against liability where an employee later turns out to not have permission to work, for example. Although right to work checks need to be conducted before a prospective employee starts work, it is also highly recommended that you continue to check these throughout an employee’s employment, particularly where the individual’s right to be in the UK is time limited.
What are the main penalties for employers who employ illegal workers?
It is important to note that there are different scenarios that are envisioned in the rules. The first scenario involves an employer who knows or has reasonable cause to believe that a person they are employing does not have the right to work in the UK. The employer in this situation commits a criminal offence and if found guilty, they can find themselves liable to imprisonment for a period of up to 5 years and/or will have to pay an unlimited fine. The second scenario and the subject of this blog post involves a situation where the employer unknowingly employs a person who does not possess the relevant permission to work in the UK, for example, by not conducting the appropriate right to work checks. In this scenario, the employer is likely to incur a civil penalty in the form of a fine. Other penalties for employing individuals without the necessary permission to work in the UK are detailed in this blog post: Immigration Right to Work Checks Guidance, examples include closure of business and a compliance order issued by the court, loss of a Sponsor Licence thus leading to an inability to sponsor migrants and disqualification as a director.
What are the current fines for employing an illegal worker?
The current civil penalty for employing an illegal worker is a maximum of £15,000 per illegal worker, where this is the employer’s first offence. Where the employer’s a repeat offender, the maximum fine is £20,000 per illegal worker. The current rates are the result of an increase to the fines in 2014. Employers caught employing illegal workers will also be published, courtesy of UK Visas & Immigration and Immigration Enforcement, in the Employers: illegal working penalties report along with the total fine that they have received.
What are the changes to the fines for employing an illegal worker?
The fine for employing an individual without the requisite right to work in the UK will increase to a maximum of £45,000 per illegal worker, where it is the employer’s first office. The maximum fine for an employer who has repeatedly offended will increase to £60,000 per illegal worker. This is undoubtedly a significant increase in the fines and will have serious financial and operational consequences for the ability of businesses who are found to be liable.
The fines are clearly meant to be a deterrent, with the Immigration Minister, Robert Jenrick stating,
“Making it harder for illegal migrants to work and operate in the UK is vital to deterring dangerous, unnecessary small boat crossings. Unscrupulous landlords and employers who allow illegal working and renting enable the business model of evil people smugglers to continue.
There is no excuse for not conducting appropriate checks and those in breach will now face significantly tougher penalties.”
Whether these fines will be successful or not is up for debate, with some of the collated results as to their effectiveness currently not being particularly promising.
What steps should an employer take to ensure that they are complying with the right to work checking requirements?
- conduct right to work checks on all prospective employees before such employees commence their employment, with reference to this Guidance published and amended regularly by the Home Office;
- conduct follow up checks on employees whose permission to be in the UK is time limited at a reasonable time before their permission expires, although note that the Guidance states to perform this check when their permission comes to an end;
- retain any and all copies of the right to work documents that were checked, which should include information such as when the check was conducted and who conducted it;
- ensure those who are responsible for conducting right to work checks are fully trained to do so and understand their responsibilities;
- where they have a sponsor licence, ensure that those involved in the management of the sponsor licence are aware of their duties and responsibilities in relation to ensuring that appropriate right to work checks are conducted and that they comply with their reporting duties and they do so on time; and
- not employ anyone who they have not conducted right to work checks for and/or who they know or have reasonable cause to believe to be an illegal worker.
It is important to note that the Government has stated that immigration enforcement activity has increased this year, up 50% compared to last year and is at its highest levels since 2019. We have seen employers with sponsor licences in the care sector being increasingly audited recently, although this is not to say that sponsors in other sectors are not also being audited. It is therefore important that employers ensure that they are complying with the right to work guidance and conducting such checks appropriately.
If you have a sponsor licence and would like to ensure that you are complying with your responsibilities, we are able to conduct an audit/compliance check of your systems to help with highlighting any strengths or weaknesses. If you are facing a compliance visit or an audit and would like help with preparing for this and/or for us to be present when it takes place, where this is an announced visit, please contact one of our expert immigration advisers.
Bonus: Quick Fire Round on Right to Work Checks
- Your prospective employee is a British citizen and shows you their British passport. Is it enough for you to see their passport in order to comply with the right to work checking requirements?
- Your prospective employee is an EU national, they inform you of this and do not provide any evidence of their status in the UK, are you in compliance with your duties to appropriately perform right to work checks?
- Your prospective employee is an EU national, they inform you of this and provide you with their passport from their country of origin, is this enough to comply with your responsibilities to conduct appropriate right to work checks?
- Your prospective employees provides you with their valid Biometric Residence Permit and you take a copy of this for your own records, make the appropriate comments on the copy you have taken, is this enough to comply with your responsibilities to conduct appropriate right to work checks?
- You obtained the necessary documentation when you employed one of your employees who is not British or settled in the UK, their immigration status expired two days ago and you continue to employ them. They have not provided you with any additional documents to prove their status in the UK but they tell you that they applied to extend their stay in the UK before their visa expired, are you in compliance with the right to work checking requirements?
These are just some examples of scenarios which regularly come up for employees and if you are unsure of any of the answers to the above or if you would like any general or specific support in ensuring that you are conducting your right to work checks appropriately, then please get in touch with one of our immigration barristers and/or seek expert employment advice.
Contact our Immigration Barristers
For expert advice and assistance with your immigration matter, contact our immigration barristers in London on 0203 617 9173 or via our enquiry form below.