Government publishes response to civil penalty illegal working scheme

The Government's response to the public consultation on 'Strengthening and simplifying the civil penalty scheme to prevent illegal working' was published yesterday (10/10/13). Increased enforcement activity by the new Immigration Enforcement Directorate (with more than double the number of civil penalty notices being issued for the period April to August this year compared to last) has already underpinned the stronger deterrence measures the government has now announced it will implement through amendments to legislation, expected next April, in response to the consultation results. In summary, the proposals are as follows:

• Right to work checks will be simplified, by reducing the number of acceptable documents from those in Lists A and B of the Immigration (Restrictions on Employment) Order 2007, with greater reliance increasingly being placed upon Biometric Residence Permits (BRPs)- updated to reflect any changes of status and conditions held by the migrant- as their usage increases.
• A revised Code of Practice and simplified guidance, upon which further consultation is promised, will provide greater support for employers in the conduct of right to work checks.
• The option of a 'warning-type' letter will be retained but will only be applied for a first breach (as now) where an employer is able to demonstrate that they have effective recruitment processes in place which are generally compliant with the regulatory duty, a history of compliance and meet the other mitigating factors (reporting suspected illegal working and active co-operation with investigation).
• The starting point for the calculation of a first time penalty will be doubled to £15,000 with employers able to reduce the penalty by proactively reporting their suspicions of illegal working, active co-operation with investigation and by paying the penalty early (30% reduction for payment within 21 days of the penalty being levied).
• There will be a higher starting point in the case of a second or further breach and while employers who proactively report and co-operate will be rewarded, a partial right to work check will no longer be a mitigating factor.
• The maximum penalty for those employers who had previously been served with a penalty notice will be £20,000 per illegal worker.
• The grace period for a company that acquires staff as a result of a Transfer of Undertakings (Protection of Employment) Regulations (TUPE) transfer will be extended from 28 to 60 days.
• An employer will be required to exercise their right to object before they make their appeal to the county court.
• The steps needed to enforce unpaid penalties will be streamlined

For advice or assistance with any aspect of right to work checks, illegal working or challenging a civil penalty, contact our immigration barristers and lawyers in London on 0203 617 9173 or by email on info@richmondchambers.com.