Under the new Immigration Bill, due to be passed in Spring 2014, it is highly likely there will be a number of changes, including:

  • an increase in the maximum penalty (from the current £10,000) to £20,000 per illegal worker, targeted at those employers who repeatedly employ illegal workers (draft secondary legislation has been prepared, and it is likely that this will come into force on 6 April 2014);
  • scrapping warning letters for a first breach (ie the first time an illegal worker is found), so employers would face the prospect of an immediate fine of £15,000; and
  • measures to allow recovery of a civil penalty directly from directors and partners of limited liability businesses following failure to pay by the business.

At the same time, the Government has made proposals to help legitimate businesses including:

  • reducing the number of documents an employer needs to check to establish a right to work; and
  • replacing annual follow-up checks for non-European Economic Area (“EEA”) nationals with ones to coincide with the expiry of permission to be in the country.

Background

Civil penalties for employers were introduced in 2008 with the aim of deterring employers from employing illegal workers. If the employer has made the right-to-work document checks in the correct manner before the individual commenced work, then it can avail itself of a statutory defence to the charge of employing illegal worker(s). Criminal liability was also introduced in relation to employers who ‘knowingly employ an illegal worker’ however there is no defence to this charge.

The hike in civil penalties, together with increased Home Office raids (or enforcement), reflects the Government intention to heavily penalise ‘rogue’ employers, whilst simultaneously simplifying the document checks for legitimate businesses.

Steps to take

It is advisable for UK employers to undertake a review to ensure the correct procedures and processes have been followed when employing its workers, including having carried out the correct document checks, ensuring all personnel files are up to date as well as subsequent monitoring. This is all the more relevant if an employer is a sponsor, as there are extra requirements with which to
comply.

Please note that this is an information note only. Please contact Jayanti Mitra-Valdes at The London Law Practice for specific advice on jayanti@londonlawpractice.com.

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