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Prevention of Illegal Working Consultation

Introduction

If you an employer, you are no doubt already aware of your obligation to check the immigration status of your employees. The introduction of the Asylum and Immigration Act 1996 originally imposed this requirement, and is now entrenched in employee induction procedures across the country.

However, the government has decided that the details of these obligations, and the associated enforcement procedure, should be assessed and revised. Therefore, the Home Office has published a consultation paper regarding these provisions, and requests responses by 20 August 2013. Some of the salient proposals are outlined below.

Current law

Since 1997, it has been a criminal offence to employ illegal workers, with infringing employers liable to a fine of up to £5,000. However, an employer has a full defence if he retains a copy of the relevant documentation, even if that documentation turns out to be a forgery.

From 2008, the Immigration, Asylum and Nationality Act also introduced a civil penalty of up to £10,000 for employing illegal workers. A new criminal offence was introduced for employers who did so knowingly, subject to imprisonment for up to 2 years, a fine, or both.

In accordance with the Code of Practice, the value of a civil penalty is determined by taking four factors into account: any partial checks completed, whether the workers were reported by the employer, cooperation with the Home Office, and any previous offences within 3 years. There are also various grounds for objection, including that the employer has complied with his obligations, or that the penalty is excessively high.

Proposals

The government’s proposals obviously aim to reduce the employment of illegal workers, as it “undercuts legitimate business and is often associated with other labour market abuses, including tax evasion and exploitative working conditions”.

The proposals relate to the civil penalty inaugurated in 2008, and consider increasing the maximum, simplifying the way penalties are calculated, improving their enforcement, reducing the range of acceptable documentation, and removing annual follow-up checks on employees with time-limited permission to work in the UK.

The government suggests increasing the civil penalty from £10,000 to £15,000 for first-time offenders, and to £20,000 for repeat offenders. These penalties are awarded for each illegal worker, meaning that some employers could face total penalties far in excess of this amount. The increase is aimed at providing a greater deterrent, protecting illegal immigrants and legitimate employers, and reducing the cost of illegal working to the British taxpayer.

The process for calculating the value of the penalty is also up for review. The Home Office propose removing any mitigation for a partial check on workers, since employers should be aware of their obligations now the provisions are well-established. For the same reason, the current procedure for simply sending a warning letter women Dual Lane Modular Combo to cooperative first-time offenders may be abolished. In addition, the effect of reporting workers and actively cooperating with the Home Office may be condensed into a set £5,000 reduction for each.

Along with reducing the number of acceptable documents for right-to-work checks, and using a biometric residence permit as the main acceptable document for most non-EEA nationals, the government also plans to remove annual checks for non-EEA national employees. The removal of annual checks will apply only to employees with time-limited visas, with a subsequent check required on the expiration of their initial permission.

If you would like advice in relation to your obligations to conduct right-to-work checks on your employees, or regarding any other area of employment or immigration law, please contact San Chima in the first instance on This email address is being protected from spambots. You need JavaScript enabled to view it.

 
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