Prevention of Illegal Working – Easier Document Checks but Tougher Penalties Ahead for Employers

The Home Office is in the process of reviewing the current Civil Penalty scheme with a view to amending it, and creating new measures to assist in the prevention of illegal migrants working in the UK.

The Government’s proposals have been issued as part of a consultation, which closes on 20 August 2013. The consultation follows an announcement in a speech made by the Prime Minister earlier this year stating that tougher action would be taken against employers who employ illegal workers in the UK.

The proposals, if implemented, would not create additional burdens on employers, but rather make the penalties for non-compliance greater, with current civil penalties doubled.

At present, employers can be fined up to a maximum of £10,000 per illegal employee working for them. If the proposals go through, the maximum fine would be increased to £20,000. The maximum fine would be applicable where an employer has received a previous civil penalty.

Under the new proposals, employers would no longer receive a ‘warning letter’ for a first breach, but face the prospect of an immediate fine for non compliance.

At present, employers can object to a civil penalty by submitting representations to the Secretary of State and can simultaneously appeal to the civil courts.

In the proposed amendments to the current system, an employer would be required to make an objection first (to allow for an effective and timely review of decisions), which might negate the need for an appeal to the civil court, and thereby reduce costs for the employer and the Home Office.

The reasons given for the increase in fines include covering the costs to the tax payer in enforcing action against rogue employers and removing illegal workers from the UK. It is also considered that increased fines better reflect the harm caused by employers of illegal workers, which includes ancillary detriment to the UK economy from increased expenditure on public services, and demands made by illegal immigrants on housing and transport services.

The proposals simplify the calculation of the fines in each case, which will be decided after consideration of mitigating factors such as whether or not the employer has reported the suspected illegal worker, or co-operated actively with an investigation by providing prompt and accurate information. The employer can expect a £5,000 reduction for each mitigating factor. Where an employer has conducted a partial check, and is in breach, this will no longer be considered a mitigating factor. For a first civil penalty, it is proposed that a maximum penalty of £15,000 should apply. The proposals also provide for an increase to 30 % from the current 20 % reduction in penalty which can be claimed where the fine is paid within 21 days of the penalty being levied. This reduction in fine is only available however for a first civil penalty notice.

On the face of it therefore, the proposals appear to be an attempt to motivate employers to ensure that they comply with the current requirements for employing foreign nationals in the UK, rather than making it more difficult for them to comply with the checking requirements.

At present, employers have a responsibility to check that their employees have the right to work in the UK, and the Civil Penalty Scheme which was introduced in 2008 requires that employers conduct these checks or face sanctions. The checks involve ensuring that the employees have correct documentation showing that they have permission to work. They are also required to retain copies of these documents which can include (inter alia) documents such as passports, visas and other Home Office documentation. If they do not comply, employers can be prosecuted for employing illegal migrants. Employers are expected to identify ‘reasonably apparent’ forgeries and satisfy themselves that the employee is who they say they are. For all non EEA employees, employers are required to conduct follow-up annual document checks.

In order to make the duties of employers easier, the proposals include removing the annual checks for employees with time-limited permission to work in the UK, and reducing the range of acceptable documents for checking purposes.

The proposals include the possibility of reducing the documentary checks to checking that the employee has a Biometric Residence Permit (BRP) which would offer a simple and secure method of verification of an employee’s right to work in the UK. The BRP, it is said, supports automated verification services which can help employers check that they are genuine.

With regard to the annual checks, rather than conduct these every year, employers would only be expected to conduct a follow-up check to coincide with the expected expiry of the employee’s permission to be in the UK, which will be known to the employer from the initial check conducted.

If the removal of annual document checks and the introduction of the ‘BRP check’ go through, these proposals could potentially reduce the administrative costs to employers in complying with the requirements. The only additional check which employers should be aware of concerns students.They will now be required to present acceptable evidence of their term dates as part of the right to work checks, in order to assist employers in understanding the limits placed on their availability to work, and prevent students from working in breach of their visa conditions.

If you would like to know more about the changes to the Civil Penalty Scheme, or would like advice on the current document checking requirements or proposed changes,please contact [email protected] or your Magrath representative who will be pleased to assist.