Home Office’s latest reports on illegal working civil penalties (01 July 2021 to 30 September 2021)

• United Kingdom

• Employment law
• Global mobility and immigration

09-03-2022

On 02 March 2022, the Home Office published its latest reports on illegal working civil penalties between 01 July 2021 to 30 September 2021.

The latest report shows an increase in the number of penalties, number of illegal workers found, and value of penalties imposed which can only be attributed to a surge in the Home Office’s activity of carrying out visits since the pandemic slowed down last summer (summer 2021).

The table below shows the consolidated figures from the current and previous report to provide a clear comparison of the number of penalties, number of illegal workers found, and value of penalties imposed between 01 July 2021 to 30 September 2021 and 01 April 2021 to 30 June 2021.

Sources: 01 July 2021 to 30 September 2021 anonymous report and 01 April 2021 to 30 June 2021 report.

What is an illegal working civil penalty and who gets them?

An illegal working civil penalty is a fine imposed by the Home Office to employers who receive a ‘civil penalty notice’. An employer receives a ‘civil penalty notice’ if the Home Office finds out that an employer is employing or has employed an illegal worker and the employer in question does not have a ‘statutory excuse’ to protect them against liability for a penalty.

An illegal worker is an individual who does not have the right to work. It can be an individual who does not have a right to work at the outset (i.e. an overstayer) or someone who has a right to work such as an individual on a Student visa but has worked beyond their employment conditions (i.e. working more than 20 hours per week during term-time). It may also be a person who had right to work when employed but that right has expired.

What else could be attributed to the increase in number of illegal workers found apart from the Home Office carrying more visits?

Based from our experience, we have seen an increase in the number of clients finding an illegal worker within their employee population or failing to comply with their sponsor obligations (such as failing to report changes within the organisation’s structure due to takeover, etc.).

The reasons are down to two factors:

1. employers struggled and continue to struggle with navigating the changes in the right to work guidance during the pandemic

2. employers not having a right to work process (especially for SMEs) or failing to implement their right to work process due to the pandemic

These factors led to a lot of employers:

• not carrying out the right to work check properly before an employee commenced their employment with the business

• not carrying out the right to work check at all before an employee commenced their employment with the business

• failing to carry out a follow-up right to work check properly during the employee’s tenure at the business properly (where applicable)

• failing to carry out a follow-up right to work check at all during the employee’s tenure at the business properly (where applicable)

All of which means that the employer cannot establish a statutory excuse against liability for penalty.

How does an employer establish statutory excuse?

An employer will establish a statutory excuse against liability for penalty if they carry out the right to work check properly (including any follow-up right to work checks, if applicable) in line with the right to work guidance at the time.

What can employers do to protect itself from illegal working?

The cardinal rule is to ensure that an employer carries out the right to work check properly to ensure that they establish statutory excuse. This is why employers should have a robust process that allows them to:

• carry out a right to work check properly before an individual joins the business

• the right to work check of an individual during their tenure with the business

• safely store the individual’s right to work check documents during their employment and for 2 years after they have left the business

What are the repercussions if an employer receives a ‘civil penalty notice’?

Aside from receiving a civil penalty of up to £20,000 per illegal worker, an employer can be sent to jail for 5 years and/or pay an unlimited fine if they are found to be guilty of employing someone who they knew or had ‘reasonable cause to believe’ did not have the right to work in the UK.

An employer might also lose their sponsor licence (if they have one) which can lead to the employer losing its sponsored employees as well as facing a negative publicity as businesses who receives a civil penalty is publicly listed by the Home Office on their website.

Is there anything I should know?

There are a lot of right to work changes coming into force in April 2022. Employers should prepare for the changes to ensure that their processes remains robust and fit for purpose.

We are hosting a free right to work webinar on 17 March 2022 at 11:00 – 11:45am covering the updates to the Home Offices’ guidance on RTW checks. Over the course of the webinar, we will cover developments in the changes to RTW checks from 6 April 2022, the extension of the adjusted RTW checking process and a refresher on conducting online RTW checks. You can book your place by click the link below.

Book your place

As well as the free right to work webinar, we have right to work training on 26/04/2022 – 28/04/2022 at 09:30 to 11:30: Immigration UK – Right-to-work in 2022: This UK immigration law course is aimed at those who responsibility for immigration issues. It is suitable for HR, global mobility and legal professionals who oversee, operate or implement RTW checking processes, compromising of the following two modules:

Module 1: Operating effective RTW checks: This module will cover how to make the relevant physical, on-line and virtual checks and how to identify potential issues including non-compliance, GDPR and discrimination and practical steps for addressing each issue. The module will also cover the situation with regards to EEA employees.

Module 2: Handling RTW problems: This module will cover the management of RTW process through to audit and inspection, discussion on the penalty regime and which action may be required when discovering non-compliance and liaising with Immigration Enforcement.