Illegal working: Home Office checks and enforcement on the rise

A Home Office press release on 16th June 2023 confirmed it had completed a record 159 illegal working visits in one day. 105 people were arrested, and employer enforcement action is expected to follow. This demonstrates the Government’s intention to increase compliance checks and prevent illegal working in the UK, in line with their five-point plan to tackle illegal migration.

The Home Office have a specialist team known as Immigration Enforcement that are tasked with carrying out enforcement checks on businesses. The Coronavirus pandemic saw a sharp decrease in the number of in person enforcement checks carried out, with only 158 taking place in the second quarter of 2020, in line with the first nationwide lockdown in March 2020. Since, there has been a steady rise with numbers largely being maintained except for the first quarter of 2021, when the third lockdown was announced. We expect that the number of in person visits will continue to rise to pre-pandemic levels in line with the current trend, with first quarter of 2023 figures only being 10.6% lower than figures in the first quarter of 2019.

Table 1 Home Office Enforcement Visits from 2019 Q1 to 2023 Q1

Certain sectors are considered higher risk for illegal working by the Home Office and tend to be subject to more frequent checks, including the care sector, hospitality (restaurants in particular), construction and retail. However, no sector or business should be complacent – we expect to see more frequent and stringent checks across the board as the Government attempt to clamp down on illegal working and amid its growing concerns about net migration levels. Therefore, it is important to ensure your processes are up to date. The requirements for compliant right to work checks have changed frequently in recent years. We continue to receive queries from clients who have lost track of how compliant checks can or must be completed, depending upon an individual’s immigration status and paperwork.

Reminder of employers duties

All UK employers have an obligation to prevent illegal working and failure to do so can result in not only reputational damage but also significant financial damage. Conducting right to work checks in line with Home Office guidance will create a statutory excuse to civil liability for employing an illegal worker. The timing and recording of those checks are key and, if done properly, will ensure that your business is protected were the Home Office to carry out an enforcement visit.

Often employers are under the illusion that once an initial right to work check is completed, then they have fulfilled their legal obligations. This is not enough to discharge the duty and instead, there are stringent process that must be followed to prevent liability where staff have time limited permission to work in the UK. Similarly, some employers operate on the assumption that they can outsource their right to work checks to a third party – care is needed here to ensure checks are being completed correctly by the employer. There are strict limits on the elements of that process which can be outsourced to a third party, such as an HR provider.

It is important employers are aware of their ongoing obligations and ensure their processes are up to date with current requirements, in case of any Home Office spot checks. Those employers who are also licensed sponsors under the points-based system have an added level of trust placed in them and are expected to have really robust processes in place.

Consequences of illegal working

If found to be employing a worker illegally, where there is no statutory excuse, the impact can be damaging for both the employer and the employee. It is an offence for an employer to employ an individual who does not have permission to work in the UK and there are serious implications for employers that breach this. Sanctions include, but are not limited to, civil penalties of up to £20,000 per illegal worker, criminal convictions and closure of the business. Further, the Home Office have a policy of naming and shaming employers that fall foul of the rules. Such sanctions can also jeopardise the employer’s ability to retain or secure a sponsor licence to employ migrant workers. Individuals who work illegally may also be subject to prosecution or fines.

The exposure for some businesses sadly does not stop there. For those businesses also licensed to sell alcohol, provide regulated entertainment or late night refreshment, the imposition of civil penalties for illegal working can result in the revocation of that licence.

For these reasons it is vital that employers are carrying out compliant right to work checks to mitigate these risks.

How can TLT help?

Our experienced business immigration team regularly work with employers to advise and train on the importance of right to work checks, sponsor compliance duties and illegal working. The team offer a wide range of services including:

• Sponsor licence eligibility checks
• Right to work process health checks
• Advice regarding right to work checks, record keeping and sponsor licence compliance
• Support and advice on responding to Home Office investigations and enforcement proceedings
• Mock immigration audits
• Virtual or in-person, details and interactive training for your team on sponsor licence compliance and right to work checks (such sessions can be recorded)

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at June 2023. Specific advice should be sought for specific cases. For more information see our terms & conditions.