Have you received a fine for an illegal working offence? These are becoming increasingly common in the UK. The fact that liability can occur solely through minor mistakes, potential fines of up to £20,000 and the significant risks mean that this should be something small businesses address.
A total of 152 civil penalties with a value of £2.5million were issued in the last quarter according to the official Home Office immigration statistics. UK Visas and Immigration advises it intends to systematically use HMRC information to note discrepancies and impose civil penalty fines. We have seen this happen in practice, as well as the traditional methods of identifying workers without permission to stay.
Impact of penalties on smaller businesses
The list of penalties which have yet to be settled suggest that these disproportionately impact smaller and BAME-owned businesses. The financial penalties arising are a significant threat to these businesses, but there are wider risks for all who have been accused of employing someone without permission to work. Those with a Skilled Worker sponsor licence face the risk of this being downgraded or revoked, with currently sponsored workers obliged to leave. Arrests in respect of illegal working may breach a supplier’s contract with a customer or, at least, be a significant strain on conducting business as usual. Local media tend to report arrests for illegal working, often with the cooperation of the Home Office; being associated with this poses a serious reputational risk for the organisation impacted.
Common issues
My experience is that employers are often prepared to pay the penalty to UK Visas and Immigration, acknowledging that there have been mistakes in the right-to-work check made. I feel this often misses some key mitigation which can reduce the penalty or even cause it to be cancelled. Three common issues which I often note as features of this cases are:
- the individual is not genuinely an employee of the company being fined and there should therefore be no liability
- the employer has accepted a document which transpired not to be genuine, but it was reasonable for them to do so in the circumstances; or
- the document check met the relevant requirements when the person was hired, but not those currently operating, which means the penalty has been issued in error.
Objecting to the penalty
Objecting to the penalty via UK Visas and Immigration, from my experience, has often been successful. Few employers are happy to challenge such penalties in the civil courts, which is a remedy also available, but there is real scope to do so in future.
It is therefore worth assessing how to approach a civil penalty with some methods to reduce this risk including:
- Reviewing right-to-work processes periodically anyway, to identify any potential risk of penalties;
- If contacted by UKVI, ensuring that the nature of the request and reasons for making this are clear before responding;
- Considering critically any civil penalty received and the potential to object to this.
My experience
I’m very pleased to bring my previous practice regarding illegal working and civil penalties to Muldoon Britton. Please don’t hesitate to contact us to discuss this if you think we can help.
Simon Kenny