The Home Office is continuing in its highly stringent approach to illegal employment enforcement. For employers, failure to meet your UK immigration compliance duties can result in a fine for illegal workers. Immigration breaches are more common than you may think. They can result from a number of areas, including what may seem relatively minor administrative errors or oversights. If your organisation receives a civil penalty notice for illegal working, after the initial panic, you may be wondering what to do next.
What is a civil penalty for illegal working?
A civil penalty notice informs an organisation it has employed a person who did not have permission to work in the UK, in breach of section 15 of the Immigration, Asylum and Nationality Act 2006. The civil penalty regime exists to ensure employers of migrant workers are compliant with immigration rules and that all their personnel have the relevant permissions to work in the UK. The civil penalty regime applies equally to all employers of migrant workers, catching out both employers who choose to ignore their obligations as well as more diligent employers who ‘unknowingly’ hire illegal personnel, for example because of a flaw in their on boarding processes.
You’ve received notice of a fine for illegal workers – what should you do next?
If your organisation has received a fine for illegal workers, your next steps are vitally important. You must now follow the process with regards to either accepting and paying the fine, or challenging the penalty. Either way, you are under time pressure to make a decision and take action – you have only 28 days to pay the fine or to appeal to the Home Office by returning an objection form. As you would expect, the Home Office encourages employers to accept fines. Payment plans can be arranged and if full payment is received within 21 days of the notice, the organisation will receive a 30% discount.
However – an employer who receives a civil penalty for immigration has the opportunity to object to the notice by providing further evidence. Compared with settling, the objection process may at first appear risky and not worth the hassle and expense. The main consideration is that challenging a civil penalty can result in the Home Office increasing the original level of fine. You need to be confident there are no grounds to justify an increase in the level of penalty. But there a number of benefits to challenging a civil penalty.
The levels of fines are considerable – up to £20,000 per illegal worker. And the reputational hit of being found to have employed illegal workers is damaging. Employers should also bear in mind that accepting a fine carries other ramifications such as potential impact on future Home Office applications. As such, it is always worth considering the strength of your potential defense against a fine for illegal working.
Do you have to pay the fine for illegal workers?
You need to appraise the merit of UKVI’s case against you.
In some circumstances, where the evidence against you and in support of the breach is overwhelming or indisputable, you may well be best advised to accept and pay. In these instances, you must also ensure you take the learnings from the cause of the breach, and adjust your systems accordingly.
You will now be on the Home Office radar, and more likely to be singled out for an unannounced site visit at a future date to ensure you have undertaken and maintained compliant procedures. If you do decide to proceed with challenging the civil penalty for illegal employment, you must follow the prescribed steps to present a challenge. This includes building a defense based on specific grounds which include:
- No proof of the offence You are not liable because you did not employ an illegal worker. The Home Office must provide sufficient evidence to prove a person did not have the appropriate right to work in the UK and that a business employed that person. A valid defence may simply be that it has failed to do so.
- The due diligence excuse You performed the required document checks on the illegal employee and therefore have a statutory excuse. You are excused from paying a civil penalty UK immigration notice if you can show you have complied with the ‘prescribed requirements’ in relation to the employment by producing the relevant documents.
- Statutory mitigating factors The penalty is too high because mitigating factors were not properly taken into account.
- The Home Office has exceeded its powers It may be that the Home Office has obtained evidence unfairly or in excess of its statutory powers.
- Other mitigating factors A broader interpretation of the wording in the Act suggests the Home Office should consider all relevant factors and determine whether it is appropriate to issue a penalty at all, rather than take into account only those considerations specifically contained in the Home Office guidelines.
If your written appeal is rejected, the next stage is to make a further objection to the County Court. You have to do this within 28 days of the Home Office’s final decision. This will lead to a rehearing, where the court can look at any documentation it considers relevant, including documents not considered by UKVI, although the majority of challenges tend to settle ahead of a hearing.
Make the right move
Given what is at stake, all civil penalties should be taken seriously. If a business decides to object or appeal a decision, these applications must be well prepared, with detailed submissions and supporting evidence. The expense, time and energy required to object and appeal a decision can seem excessive, but if a business receives a civil penalty UK immigration notice, there are significant consequences and many reasons to appeal a civil penalty for immigration.