The Home Office is introducing increasingly tough measures to stop people working illegally in the UK. This is part of their pledge to create a ‘hostile environment’ for offenders. We know that it may be difficult for an employer to determine whether someone is an illegal worker. But, there will be little sympathy from the Home Office. Employers often don’t know which way to turn.
Based on our experience of working with employers we have set out below some steps employers should be thinking about. Please do call us if you have any questions.
Illegal entry, remaining in the UK unlawfully and breaching the conditions of a visa have long been criminal offences imposed on the individual offender. But in recent years the Home Office has introduced measures that criminalise and penalise employers as well. The Home Office has taken the view that it is employers who should prevent the employment of illegal workers. They are therefore making employers liable for civil penalties and/or criminal offences.
Working includes all types of working arrangements. These include working under a contract of employment, contract of apprenticeship, contract personally to do work, contract for services, and contract to sell goods, amongst others.
It can be a criminal and civil offence to employ an illegal worker.
Employers who are caught employing illegal workers may face a civil penalty (i.e. a fine) of up to £20,000 for each illegal worker. An employer can be liable to pay this fine even if he did not know that he was employing an illegal worker.
The employer will be sent a civil penalty notice informing him of the fine. The employer will have a chance to defend himself and will not have to pay the fine if he can show that he made the correct ‘right to work’ checks.
Proving that you made the correct ‘right to work’ checks is the only way to escape the penalty. It is not an accepted defence to say that you did not know that the employee was an illegal worker.
If an employer is found to be employing illegal workers, he may be liable for a criminal offence on top of the civil penalty. The criminal offence requires the employer to know, or have reasonable cause to believe that they are employing an illegal worker.
An employer may be sent to jail for 5 years and be ordered to pay an unlimited fine if he is found guilty of employing someone who he knew or ‘had reasonable cause to believe’ did not have the right to work in the UK. An illegal worker may be someone who:
It has been decided in the UK courts that there is no obligation on an employer to obtain the ‘right to work’ documents. However if the employer is found to be employing an illegal worker, then he will be penalised if he did not perform the ‘right to work’ check correctly. At the same time, an employer must not discriminate against anyone because of their race. This seems contradictory and creates much uncertainty for employers.
To put it another way, the law does not require an employer to obtain the relevant documents via ‘right to work’ checks; however, it does give the possibility of avoiding a penalty if certain documents are obtained from the employee.
In practice the current legal position is that an employer cannot be penalised if he did not carry out the ‘right to work’ checks on someone who is allowed to work in the UK because he/she is not subject to immigration control. Therefore, a well advised employer will be checking carefully.
If immigration officers catch an employer employing an illegal worker, then it is important that he proves that he carried out the ‘right to work’ checks before he employed the illegal worker. The code of practice for employers (which can be found via gov.uk) states that an employer must:
The gov.uk website provides a tool for checking if someone can work in the UK; however this uses immigration terminology many lay people do not understand and may therefore be of limited use. We will provide you with advice in plain English and guide you on the next steps, where applicable.
If an applicant or a suspected illegal worker is unable to provide documents to prove that they have permission to work in the UK then the employer must ask the Home Office to check their immigration employment status if any of the following applies:
The employer must obtain the applicant/employee’s permission to make the check and must provide their personal information and information about the job role. Many of the above documents do not allow a person to work. If the person in question has a right to work, the Home Office will send a ‘Positive Verification Notice’ to confirm that the applicant has the right to work.