The Government’s Proposals on Strengthening and Simplifying the Civil Penalty Scheme Imposed on Employers who employ Illegal Worker

 

The Government’s consultation on this closed on 20 August 2013 and the Government’s proposals in terms of the way forward were published on 10 October 2013. 

The Government has already stepped up its operations in recent months in the enforcement against illegal working which has resulted in more than double the number of civil penalty notices for illegal working being served on employers between April and August this year, compared to the same period last year.  The Government will continue to step up announced and unannounced visits of businesses and in line with this proposals have been set out by the Government which will become law by April 2014

The key areas to note and to be prepared for are as follows:

1. It is proposed that the maximum civil penalty will increase to £20,000 per illegal worker for employers who breach right to work checks on more than 1 occasion.

2. The Home Office will increase their powers to enforce unpaid civil penalties through the civil courts.

3. The Home Office will step up their powers under the Immigration, Asylum, Nationality Act 2006 to prosecute those employers who knowingly employ illegal workers.

4. It is proposed that the calculation of civil penalties will be simplified:

 The Home Office will retain the sliding scale to reflect previous compliance or non-compliance by employers, i.e. there will be a higher starting point for repeat offenders and reductions for employers who proactively report suspected illegal working and cooperate with investigations into illegal working; and

 The Home Office will aim to make the right to work checks carried out by employers easier through a more simplified guidance, increase support given to employers by the Home Office and reduce the range of documents to be viewed as there continues to be a move towards biometric residence permits.

5. The Home Office will remove “initial warning letters” for non-compliance except where the employer demonstrates that he has processes in place which generally comply with their regulatory duties to check the right to work and prevent illegal working or where the employer has a history of compliance and reporting suspected illegal working and cooperating with Home Office investigations.

6. The Home Office have also stated that it will be seen as an aggravating factor when determining a civil penalty notice where an employer has received one or more notice in the past.  Therefore an initial breach should alert any employer to one or more deficiencies in their recruitment process which should be rectified and a higher burden is placed on larger employers who should have robust systems in place to reflect a larger volume of staff.

7. It is proposed that the civil penalty notice for a first breach will increase from £10,000 to £15,000 though there will be a reduction in the sliding scale for those employers who are proactive in reporting suspected illegal working and cooperating with Home Office investigations.  There will also be a 30% reduction for early payment (within 21 days).

8. The Home Office propose that eventually biometric residence permits will be the main evidence that an employer needs to rely upon to confirm right to work. This is because by a point in 2014 the Home Office will move towards issuing biometric residence permits for all those who come to the UK on visas for more than 6 months.  The Home Office is currently working on the development of automated biometric residence permit checks as part of wider support for employers on conducting right to work checks and this is currently being piloted with some employers.  To make the process simpler with checking right to work documents for non-EEA family members the Home Office also propose to issue biometric cards for this group of people.

9. The Home Office also propose that follow up checks linked to the expiry of permission to stay in the UK to be introduced as opposed to annual checks.  By April 2014 the Home Office propose to provide a Code of Practice and Guidance on how to handle employees whose visa has expired at the time of the check.

10. As part of the consultation trade union representatives suggested that the key to attacking exploitation of undocumented workers was to allow such workers recourse in law and through the courts.  However the Government has confirmed that illegal migrants who work in the UK do not have a lawful contract of employment and are therefore not able to claim any employment rights or enforce these rights through the Employment Tribunal system (however this does not avail automatic protection where a migrant has become illegal as a consequence of your actions or lack of actions).  The Government’s approach with tackling exploitation of illegal workers is to impose civil penalties on employers.

11. In terms of the employment of international students the Home Office will introduce a requirement that students provide evidence of term time dates as part of right to work checks.  We have recommended to our clients that where international students are concerned it is important to obtain a letter from the educational institution confirming that the student does attend the institution, the course study and term time dates.  Accordingly this recommendation will now be a Home Office requirement. 

12. With regard to TUPE transfers you will be aware that the Home Office have given 28 days grace period following the transfer to carry out document checks.  This 28 day period will be extended to 60 days.

Please note that the proposals that have been outlined here will become law as part of the Immigration Bill which is currently passing through parliament or through secondary legislation.  The Government has proposed that the above changes will take place by April 2014.  We give you this information now so that you may begin to consider your own internal systems and procedures but we will of course advise you as and when these proposals are implemented into law.

If in the meantime if you require further assistance or advice then please do not hesitate to contact us.

 

 

             

 

 

 

Thalej Vasishta

Group Chief Executive/Solicitor
To email Thalej Vasishta click here
DD : 01159 644104

 

 

 

 

Kirin Abbas

Legal Services Director
To email Kirin Abbas click here
DD : 01159 644110