Helen Holder of Kangs Solicitors considers in detail the ‘Right to Work’ checks employers are required to undertake.
What is the law right now? | What are the consequences of employing illegal immigrants?
The Asylum and Immigration Act 1996 creates an obligation on employers to prevent illegal working in the UK by carrying out prescribed document checks on people before employing them to ensure they are lawfully allowed to work.
Section 15 of the 2006 Act states that an employer may be liable for a civil penalty if they employ someone who does not have the right to undertake the work in question.
The civil penalty could be as much as £20,000 for each illegal worker.
However, recently the law has gone further and on the 12th July 2016 section 35 of the Immigration Act 2016 came into force which sets out that it is now also a criminal offence to employ an illegal worker.
The offence is made out where an employer employs an illegal worker and knows or has reasonable cause to believe that the person has no right to do the work in question.
The maximum sentence is 5 years imprisonment and/or an unlimited fine.
What is a right to work check? | Criminal offences arising from Immigration
Employers must check the proposed employee’s documents before they are employed to ensure that they have permission to work in the UK. The onus is on the employer to:
- Obtain the person’s original documents;
- Check them in the presence of the holder;
- Make and retain a clear copy and
- Make a record of the date of the check
There is a list of documents that will be acceptable to demonstrate a right to work.
Statutory Excuse | How can a fine be avoided?
If, as an employer, you carry out the necessary document check you will have a statutory excuse against liability for a civil penalty.
This means that if it is proven that you have employed someone who does not have the right to work but you have correctly conducted the check, you will not be liable for a civil penalty.
If you cannot rely upon the statutory excuse, the level of your breach and the amount of any civil penalty for which you may be liable will be determined on a case by case basis by Home Office officials.
How can a Solicitor help? Kangs Immigration Solicitors
Kangs Solicitors are experienced in liaising with the Home Office officials responsible for administering the civil penalty scheme.
We can assist in responding to Information Requests, collating supporting evidence and making representations on your behalf.
Should you receive a civil penalty notice and you wish to object you have 28 days to do so.
The grounds on which to appeal are limited to:
- You are not liable to pay the penalty;
- You have a statutory excuse; or
- The level of penalty is too high.
The first right of appeal is to the Home Office.
Following that there is a further right of appeal to the Civil Court.
Kangs Solicitors can assist you in the appeal process.
A recent case | How we helped an employer avoid criminal charges and a large fine
Hamraj Kang and Helen Holder of Kangs Solicitors were recently instructed by a company director and his partner in relation to a police investigation of immigration offences and also a civil penalty notification.
Following detailed instruction taking, representation at the police station and liaison with the officer in the case, both were released from police bail without charge.
In relation to the civil penalty, the Home Office was looking at details of 20 employees, with a potential penalty totaling hundreds of thousands of pounds.
Again, following consideration of the Home Office’s own guidance, detailed submissions and the collation of a bundle of evidence supporting our clients’ position, a final penalty of £17,500 was imposed.
The consequences of a civil penalty | Is the civil penalty the end of the matter?
The impact of a civil penalty can be far reaching.
Not only will the Home Office have the power to start action to recover the civil penalty but also:
- The action may have an adverse impact on your ability to obtain credit in the future and act in the capacity of a director in a company
- It will be recorded on the Home Office system and may be taken into account when considering any future immigration application you may make
- It could affect your ability to sponsor migrants who come to the UK in the future and
- Your details will be published on the government’s website as an employer of illegal workers.
It is therefore important that you take action and receive advice whether you are being investigated for a civil penalty or under the new criminal offence.
Our team of experienced lawyers at Kangs Solicitors is here to assist you.
Please feel free to call any of the below listed solicitors for advice and assistance: