As part of the Home Office’s punitive toolkit against illegal working, employers who are found to be in breach of their immigration compliance duties may be issued a civil penalty under the Immigration Act 2016.
The Immigration Act also introduced criminal offences in cases of illegal employment and provided additional powers for immigration officers to search and seize documents.
What is a civil penalty under the Immigration Act?
Civil penalties can be issued against any UK-based employer.
UK employers have a legal responsibility to ensure their organisation employs only those workers who are lawfully permitted to work in the UK and have the right to undertake the type of work being offered.
A civil penalty under the Immigration Act 2016 is a fine which can be issued to employers who are found to have breached their Right to Work duties. The Home Office can issue a fine up to a maximum value of £20,000 per illegal worker. There is no limit to the number of civil penalty fines that can be issued against a single employer.
Depending on the individual case, severity of the breach, and whether you or the company have historic offences, a Civil Penalty can also result in the following:
- Temporary closure of the company while the status of its workers is assessed
- A negative impact in the company’s future credit
- The loss of any and all employees who are not working in the UK legally
- The potential disqualification of key individuals, such company directors
- In severe cases, key company figures could face criminal prosecution and even imprisonment
- Potential suspension or revocation of your Tier 2 Sponsorship License
- Company name being published on the annual Home Office list of Civil Penalty recipients, leading to loss of company reputation and potential profit loss
The high cost of a civil penalty, along with wider repercussions including damage to a business’s reputation, make it essential that business owners are aware of their legal responsibilities and how to meet them.
The Home Office uses unannounced site inspections to monitor employers’ compliance with their duties to prevent illegal working. Having effective Right to Work processes and records should provide you with a statutory defence against any allegations of non-compliance.
If you are facing a civil penalty under the Immigration Act, you will need to act quickly, to decide whether to settle the fine or to challenge it.
What are an employer’s Right to Work duties?
Prior to employing anyone, employers must ensure the applicant has the appropriate documentation that proves their right to work in the UK.
This requirement applies to all new employees, irrespective of nationality – UK, EEA and non-EEA nationals. Failure to conduct Right to Work checks consistently across all workers may result in non-compliance and issues of discrimination.
Employers have to obtain the relevant documents that evidence the individual’s right to work; check their validity; and make a copy, along with the date you completed the check, for your records.
The documents that an applicant is required to provide to prove their right to work must come under the relevant list of Home Office approved documentation:
List A of acceptable documents for individuals who have been granted permanent right to work in the UK.
List B for acceptable documents when an individual has temporary right to work in the UK. In this case, the employer must ensure they undertake follow-up checks to ensure continued right to work.
Where the applicant has provided the necessary documents, the employer must check and be satisfied that documents are valid, in their original format, that they belong to the individual who has given them to you, they must not have been changed or tampered with, and not have expired.
The photographs and date of birth on the documents must match the applicant’s appearance and be the same across all documents provided.
What to do if you face a Civil Penalty
Should you receive a Civil Penalty under the Immigration Act, there are three potential routes to take: pay the fine in full, pay the fine in instalments, or dispute the civil penalty.
Which is appropriate to your situation will depend on many factors, including whether you can rely on the statutory excuse to challenge the fine. This means you can show you have carried out the relevant Right to Work document checks and taken reasonable steps to ensure the legality of your employees’ permission to undertake the employment.
If you accept the Civil Penalty you will be required to pay the fine. You can either pay the penalty in full or contact the Home Office directly to request a payment instrumental plan, allowing you to pay the penalty in stages.
The Home Office encourages accepting a civil penalty and in addition to providing payment plans will offer discounts to businesses who pay the fine within 21 days.
However, there are many instances where employees may have valid grounds to challenge the fine.
If an employer can prove that the Home Office has not followed their own process correctly, for example failing to provide sufficient evidence of the alleged breaches, or that the employer had sufficient reason to believe the employee was legal and did undertake Right to Work assessment of the applicant, they may be able to argue to have the civil penalty cancelled.
Objections should not be taken likely and employers should take into account the risk that should they choose to challenge the penalty and be unsuccessful in their case the Home Office may increase the fine.
Before taking any action, employers should seek professional legal advice on the merits of your case and to understand the financial implications of your options.
It is important that, whichever route you take, you act quickly as the Home Office operates a 28-day deadline.
Failure either to pay, make contact with the Home office for a payment plan, or inform the Home Office of your objection to the Civil penalty by the 28-day deadline may incur additional penalties. There is no extension period on this deadline, whether you intend to contest or pay the civil penalty.
When and why to seek legal advice
Should you receive a civil penalty under the Immigration Act, it is important that you seek legal advice immediately to determine whether or not to contest the fine, and to take the appropriate steps within the tight 28-day deadline.
Prevention is however better than cure. Employers are advised to ensure they meet their Right to Work duties in the first instance to avoid Home Office penalties.
This means ensuring recruitment and onboarding HR systems are compliant and effective at identifying applicants or employees who either do not have the right to work in the UK or whose right to work may be expiring.
Legal advisers can assist in developing effective onboarding processes, ensuring your business is operating in full compliance with its legal obligations in respect of the prevention of illegal working.