Why are right to work checks important?

Employers in the UK have a responsibility to prevent illegal Employers who are found to be employing workers illegally are liable for criminal, and civil penalties, and can suffer reputational damage. Robust right to work policies should be implemented by all employers to help protect against these risks, the most important of which are set out below.

Criminal offence

Employers will commit a criminal offence if they knowingly employ illegal workers. An offence will also be committed if the employer has reasonable cause to believe that they are doing so.

While criminal sanctions are only deemed appropriate for the more serious cases of illegal working, where an employer knowingly employs an illegal worker, all employers should be aware of this risk. If found guilty of a criminal offence, employers could face up to five years’ imprisonment and/or an unlimited fine.

Businesses found to be employing illegal workers are liable to pay civil penalties of up to £20,000 per illegal worker.

Statutory excuse

It should be noted that employers who carry out prescribed right to work checks will benefit from a statutory excuse against illegal working provided that they reasonably believed that this check was accurate. In these circumstances, no penalty would be payable.

Guidance on how to carry out a prescribed right to work check can be found here.

If an employer has not carried out a right to work check, or they have not carried it out in the manner prescribed by the Home Office, and they are found to be employing an illegal worker or workers, then they will be liable to pay a civil penalty.

The amount payable can be reduced if the following conditions are met:

Level 1 – first time breach

• The employer reported the suspected illegal worker to the Home Office (£5000 reduction).
• The employer has actively cooperated with the Home Office (£5000 reduction).
• The employer has an effective right to work checking system in place in addition to the above two mitigating factors (£5000 reduction).

In addition, the final minimum penalty may be reduced by a further 30% to £3,500 per illegal worker if the employer uses the Home Office’s fast payment option.

Level 2 – second or subsequent breach

• The employer reported the suspected illegal worker to the Home Office (£5000 reduction).
• The employer has actively cooperated with the Home Office (£5000 reduction).

The fast payment reduction is not available to employers who have been found to be employing illegal workers within the previous three years. The minimum penalty will for second or subsequent breaches will therefore be £10,000 per illegal worker.

Closure notices and compliance orders

The Home Office may issue closure notices to businesses who persistently fail to comply with the law on illegal working. Such notices force businesses to temporarily close and prohibit access to the relevant business premises without prior authorisation by the Home Office.

Once issued, the Home Office will apply to the courts for a compliance order to prevent the employer from employing illegal workers. The employer will be placed under special conditions to support compliance and may also be inspected by Immigration Officers.

Reputation

Businesses who are found to be employing illegal workers will be publicly named in the Home Office’s quarterly report on illegal working penalties. The report sets out the total number of civil penalties for illegal working issued to non-compliant employers in each region of the UK, the number of illegal workers found, and the value of the penalties issued.

Businesses of all sizes are liable to be named in the above report and any publication is likely to have a negative impact on customers, employees and shareholders.

Sponsor licences

The ability to sponsor workers in the UK is considered by the Home Office to be a privilege and not a right. The Home Office places significant trust in licence-holding employers, and places sponsor duties on them which include a duty to maintain good right to work checking practices in order to help prevent illegal working.

Sponsors who are found to be employing illegal workers risk having their sponsorship licences downgraded, suspended or revoked. In the most serious circumstances where a  licence is revoked, employers should be aware that all sponsored workers, including those working legally, will have their permission to work in the UK curtailed.

Best practice

The guidance on how to conduct prescribed right to work checks changes regularly, it is therefore important for employers to stay up to date with all developments to help protect against illegal working. Regular training should be offered to those responsible for conducting the checks and sponsor licence-holding employers should familiarise themselves with their sponsorship and reporting duties to limit the risks to their licences.

---

If you have any queries on the topics discussed, please get in touch with the author Megan Moorhouse

.If you are concerned about the risks of illegal working on your business, please contact the Immigration Team for further advice.

The team is experienced in carrying out mock audits to assess illegal working risks, can offer training on right to work checks and sponsorship duties, and can advise on right to work policies and sponsored workers.