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As previously reported, amid a variety of immigration changes being introduced, the UK Government intends to increase compliance checks and prevent illegal working in the UK: https://www.tlt.com/insights-and-events/insight/illegal-working-home-office-checks-and-enforcement-on-the-rise/
A key change for employers to note is the civil penalties for illegal working are tripling from 13 February 2024.
All UK employers are expected to take steps to prevent illegal working – typically through completion of Home Office-prescribed right to work checks. Those checks have changed significantly over the years in terms of timing, method of check and the evidence which must be retained.
The primarily employer risk is civil penalties for illegal employment. These can apply to employment that commenced on/after 29 February 2008. If an employer is found to be employing an illegal worker, they are currently liable for a starting civil penalty of £15,000 (£20,000 for repeat offences within a 3-year period). Where liability for a civil penalty arises, there is scope to mitigate those penalties in line with the Home Office Code of Practice on Preventing Illegal Working (a new version will come into effect on 13 February).
Those civil penalties will increase to £45,000 and £60,000 respectively on 13 February 2024.
Additional risks can also arise, including criminal liability, business interruption, detrimental impact on the ability to sponsor migrant workers and reputational damage to name a few.
The increased penalties will apply to illegal working which took place on/after 13 February 2024. So, if illegal working occurred solely prior to this, the previous penalties should be applied. An important point to bear in mind if investigating potential illegal working and consider dismissal.
If an illegal worker is found to be working in your business, but you have completed a compliant right to work check and can evidence that you will have a defence to a civil penalty.
1. Provided an initial, pre-employment, right to work check has been completed the employer is protected.
This will only be the case for those with an unlimited right to work in the UK. Those with time-limited permission are subject to repeat checks at prescribed intervals. Any statutory excuse secured pre-employment must be maintained through a compliant repeat check. Do the repeat check late and the thread of protection is cut!
2. Illegal working only takes place if the individual does not have permission to be in the UK.
Illegal working can also occur if an individual works in breach of their visa conditions. For example, a student visa holder breaches their working hours restrictions; or a sponsored skilled worker takes on a full-time role with someone other than their sponsor employer.
3. Right to work checks can be delegated to a third-party organisation.
The completion of compliant right to work checks is the responsibility of the employer and it must complete them to benefit from a statutory excuse. Whilst certain elements may be compliantly outsourced (e.g. using an Identity Service Provider to check British or Irish nationals), an employer must still complete those mandatory elements required of them to benefit from a statutory excuse. With online checks, for example, the Home Office retains an audit trail of those completed by employer organisations, so care is needed if trying to outsource checks.
4. Failure to complete right to work checks will result in a civil penalty
There is no standalone liability for simply not completing compliant right to work checks. However, should you fail to do so and illegal working occurs, the employer will be exposed to a penalty and have no statutory excuse.
1. Review your processes and procedures
The right to work checking requirements have changed many times over the years and we frequently see employers who have lost track of developments in this space inadvertently fail to secure statutory excuses. With potential penalties increasing so significantly, it will be more important than ever to make sure you have robust processes in place. Things to consider include:
2. Train your staff
In addition to good paperwork, ensuring those completing checks are appropriately trained on current requirements and the risks of getting it wrong is key. Human error can expose your business to significant financial liability.
3. Consider an audit
A one-off or periodic internal or external audit can be invaluable to help you identify weak points in your processes, as well as potential illegal working breaches you were unaware of.
4. Don’t ignore Home Office letters
Where illegal working is suspected, the Home Office will typically issue an initial Information Request, requiring a response within tight timescales. Responding to such a request and co-operating with any investigation will be critical when it comes to assessing whether a civil penalty should be imposed and the level of penalty due.
Our expert business immigration team have extensive experience in this area and can provide advice and support.
This publication is intended for general guidance and represents our understanding of the relevant law and practice as at January 2024. Specific advice should be sought for specific cases. For more information see our terms & conditions.
25 January 2024