Senior solicitor Andrea Corr, in our Employment Law team, explains how the penalties for employing illegal workers are set to treble and how employers can ensure that they comply.
Background
The Immigration Act 1971, the Immigration, Asylum and Nationality Act 2006 (the 2006 Act), and Schedule 6 of the Immigration Act 2016 set out the current law on illegal working. In particular, the 2006 Act established a penalty scheme in respect of the employment of illegal workers.
Employers who fail to comply with the 2006 Act run the risk of prosecution. Civil penalties are currently £15,000 per illegal worker for a first offence, with a penalty of up to £20,000 per illegal worker for repeated offences. The Government has however also recently announced (in August 2023) that in early 2024 (date as yet unknown) these penalties are due to triple to £45,000 per illegal worker for a first offence with a penalty of up to £60,000 per illegal worker for repeated offences.
The names of those employers who are found guilty of employing illegal workers and the value of the fines levied are also published in quarterly, public, online government reports which may lead to subsequent reputational damage.
It is also a criminal offence under the 2006 Act to knowingly employ illegal workers. This is defined as being where employers “know or have reasonable cause to believe” that an individual did not have the right to work in the UK. Breach of this provision carries a custodial sentence of up to 5 years and / or an unlimited fine, or both. It can also in serious cases lead to closure of the business, and / or disqualification as a director.
Whether accidental or deliberate, breach of the 2006 Act can also lead to the revocation of any sponsorship licence(s) held by the wider business so that the business is no longer able to sponsor migrant workers. Any existing sponsored migrant workers would then usually have 60 days in which to find new employment with a licensed sponsor or leave the UK.
As such no business can afford to ignore this issue.
Establishing a Statutory Excuse
In order to avoid a civil penalty and / or prosecution, a statutory excuse may be established by an employer as a defence against illegal working.
An employer will have a statutory excuse if they have followed a number of steps prior to the commencement of that particular employee’s employment, and that they have documented evidence of the same. If the Home Office is satisfied that the employer has a statutory excuse, then they will not be liable for a civil penalty.
If the employer has accepted a document where it is reasonably apparent that the person presenting the document is not the rightful owner, the document is false, or if any employer has accepted documents where the person is not allowed to work or live in the UK, the employer will not have a statutory excuse.
There are prescribed requirements in order to establish a statutory excuse.
Continuous Statutory Excuse
In the case of those with a permanent right to live in the UK the following documents are considered acceptable to establish a continuous statutory excuse:-
i. A current (or expired) British passport;
ii. A current (or expired) Irish passport or passport card;
iii. A current passport endorsed to show that the holder is exempt from immigration control, is allowed to stay indefinitely in the UK, has the right of abode in the UK or has no time limit on their stay in the UK;
iv. A current passport together with a Biometric Residence Permit showing no time limit restrictions; or
v. In the case of those without a passport, other acceptable documents taken from the government guidance.
There are separate rules in respect of holders of Isle of Man and Channel Islands passports.
Time Limited Statutory Excuse
In the case of those with a temporary right to live in the UK the following documents are acceptable to establish a time limited statutory excuse which lasts until the date of expiry of the permission to stay:-
a) Current passport plus a Biometric Residence Permit showing certain time restrictions; or
b) Immigration status documents with a photograph.
In certain cases it may only be possible to establish a time limited statutory excuse that lasts for 6 months only. Further checks will be required after the six months has lapsed. This includes those with:-
a) A document showing that the holder has made an application to the EU Settlement Scheme (on or before 30 June 2021) together with a Positive Verification notice issued by the Home Office Employer checking service;
b) A Certificate of Application showing that the holder has made an application to the EU Settlement Scheme (on or after 1 July 2021) together with a Positive Verification notice issued by the Home Office Employer checking service;
c) An Application Registration Card stating the holder is permitted to take the employment, together with a Positive Verification Notice indicating the named person is permitted to do the work in question; or
d) A Positive Verification Notice indicating the named person may stay in the UK and is permitted to do the work in question.
For each document held by an employer, they must take reasonable steps to ensure it is genuine, and that the person producing the document is the rightful owner. The employer must be satisfied that the documents are legitimate and if in doubt, must ask for further information and documentation.
The employer must also take a photocopy or scan of the employee’s documentation (passport, BRP, etc.). These must be kept during the duration of the employee’s employment and for a further two years afterwards. The date on which these copies are taken should also be noted.
There are additional provisions in respect of the employment of Skilled Worker visa holders in supplementary employment and also in the employment of students during term time / holidays.
Our specialist Employment Law team can advise on immigration matters.
For further information or legal advice, please contact law@blandy.co.uk or call 0118 951 6800.
This article is intended for the use of clients and other interested parties. The information contained in it is believed to be correct at the date of publication, but it is necessarily of a brief and general nature and should not be relied upon as a substitute for specific professional advice.
