Increases in fines for employing illegal workers – what you need to know

Fines are to be tripled for employers who allow illegal migrants to work for them, the Home Secretary announced on 7th August.

The civil penalty for employers, which was last increased in 2014, will be raised to up to £45,000 per illegal worker for a first breach from £15,000, and up to £60,000 for repeat breaches from £20,000. The higher penalties will come in at the start of 2024.

Since the start of 2018, almost 5,000 civil penalties have been issued to employers with a total value of £88.4m. These fines relate to employers who are found to be employing illegal workers, even inadvertently, but if an employer is found guilty of employing someone who they knew or had ‘reasonable cause to believe’ did not have the right to work in the UK, they can be sent to jail for 5 years and face an unlimited fine.

What you need to do

Verifying someone’s right to work can be handled in one of three ways:

In-person checks

You must get proof of the right to work in the UK before someone starts working for you. This means you will need ask for proof at some point during the recruitment process. The point at which you ask for this proof is up to you, but it makes sense for that point to be as early as practicable.Step 1. Get original documents

You will get need to obtain original documents from the government’s list of acceptable documents. Step 2. Check documents

Once you have received original documents, you must check:

You must also make a record of when these checks were made.

Step 3: Make copies

You must then make copies of all documents provided and store them securely. The copies you take must include:

All copies of documents should be kept securely for the duration of employment and for two years afterwards. At the end of those two years, the copy must then be securely destroyed.

Follow up checks

You will need to carry out follow up checks on those with time-limited permission to work in the UK. These checks should be carried out when their previous permission comes to an end.

The process set out above can be used for follow-up checks.

If a person does not have the right to work in the UK

If checks reveal a prospective employee does not have the right to work in the UK, you can withdraw the job offer.

If a current employee who has time-limited permission is found to no longer have the right to work in the UK, you must take steps to end their employment. A potentially fair reason for dismissal in these circumstances would be a statutory bar (i.e. that continuing their employment would constitute a criminal offence).

If documents are not supplied

If documents needed for right to work checks are not supplied by a prospective employee, they cannot start work for you.

You may need to delay the person’s start date until the documents are provided.

If the necessary documents cannot be provided at all, you should withdraw the job offer.

Who can ask to see evidence of right to work?

The police and/or immigration officers may ask for proof you have carried out right to work checks on employees. They may also ask to inspect your records.

Digital checks

The government has recommended that employers who choose this second method use the services of a certified identity service provider (IDSP).

The individual will need to provide an image of a valid British or Irish passport, which is then checked digitally by the IDSP.

There is a list of certified IDSPs on the official government website.

https://www.gov.uk/government/publications/digital-identity-certification-for-right-to-work-right-to-rent-and-criminal-record-checks/digital-identity-certification-for-right-to-work-right-to-rent-and-criminal-record-checks#list-of-certified-idsps

Home Office Online Right to Work Check

This check relates to those individuals with time-limited permission to reside in the UK and involves generating a ‘share code’. This is an alphanumeric code which, when generated, can be used by the employer to access information relating to the individual’s permission to reside and work in the UK. This check will provide a photograph of the individual, confirm whether they have permission to work in the UK and list any restrictions related to the type of work they can carry out, as well as the date their right to work ends (if applicable).

This check can be found by following this link:

https://www.gov.uk/prove-right-to-work/get-a-share-code-online

What if the individual cannot generate a share code?

There are some circumstances where individuals with time-limited permission to reside in the UK cannot generate a share code. This will be the case when an individual’s leave has expired but they have made an ‘in-time’ application to extend or switch their leave.

Section 3C of the Immigration Act 1971 automatically continues the leave of individuals who make a valid application to extend or switch their leave prior to the expiry of their current leave. This means that, despite their leave expiring, their permission to reside and work in the UK continues under the previous conditions until such time as a decision is made on their application. During this period, which could last 6 months or more, the individual will be unable to generate a share code because their application is pending.

In these cases, the employer should use the Employer Checking Service. This is a short online form which, after 5 days, will provide a verification notice confirming that the individual either has a pending application with the Home Office or does not.

A positive verification notice (PVN) will confirm that the individual has a valid application pending with the Home Office and, as such, has the right to work. This check will provide the employer with a 6-month statutory protection and allow them to employ, or continue to employ, the individual in the meantime. If the individual’s immigration application has not been decided after 6 months, a further check can be carried out which will give the employer an additional 6 months’ protection.

If the check returns a negative result, the offer of employment should be withdrawn, or steps taken to end their employment. Again, this can be done on the basis of a statutory bar.

The Employer Checking Service can be found by following this link:

https://www.gov.uk/employee-immigration-employment-status

Avoiding discrimination

You must make sure to avoid discrimination when carrying out right to work checks.

You should:

As with all employment issues, it is highly recommended that employers take expert legal advice before embarking on any new policy or procedure.