Government proposals to overhaul the civil penalty regime for employers & top ten tips for right to work checks

By Natasha Chell, Partner, Laura Devine Solicitors

August 19 2013 - Employers' duty to prevent illegal working is underpinned by a civil penalty regime which is now being reviewed with a raft of Government proposals aimed at strengthening and simplifying the system. The proposals are part of the forthcoming Immigration Bill designed to make it more difficult for illegal migrants to live and work in the UK.

Since 2008, employers have faced civil penalties for employing illegal workers. The proposals include increasing the maximum civil penalty fine for employers from the current £10,000 to £20,000 per illegal worker. It is questionable whether this increased punitive punishment will deter employers from flouting the rules and whether the additional income will go directly to the enforcement teams to improve the detection of illegal working.

Since 1997, it has been a criminal offence to employ an illegal worker and since 2008, an employer also became liable for a civil penalty for employing an illegal worker unless they can rely on the statutory excuse. The statutory excuse is established by the employer undertaking a right to work check, including verifying the employee's passport. Importantly though, there is no statutory excuse if the employer knowingly illegally employed the worker. For employees recruited on or after 29 February 2008, to maintain a statutory excuse, employers must undertake annual right to work checks for workers with time limited immigration permission (most non-EU citizens). The Government proposes to remove the need for annual checks and revert to the pre-2008 system whereby the initial right to work check establishes a statutory excuse until the immigration permission expires and introduce a requirement that further checks are undertaken shortly before any immigration permission expires. Proactive employers and HR teams who have been undertaking the annual checks will surely welcome this change to remove the annual check as one less action on their never-ending to do list. The new proposed check before immigration permission expires is something that employers should already do as best practice. However, it is worth noting that the current annual right to work check protects employers against illegal working for 12 months from the date of the annual check which in effect means that, in certain circumstances where there is no knowledge of illegal working, even if the worker's immigration permission expires shortly after the annual check they would be protected against any illegal working until the next check was due, a loop hole which the Government now wants to close.

Other proposals aim to redefine the current mitigating factors for an employer caught illegally employing a worker. Currently, if an employer has not obstructed an investigation they may receive a reduced civil penalty but now the Government wants employers to play the role of Immigration Officer and 'actively co-operate' in exchange for the reduced civil penalty. What does the Government actually mean by this? There will always be tension between employment and immigration obligations and situations will no doubt occur when the employer has to undertake certain steps in accordance with employment law and basic risk management before reporting a suspected illegal worker. Will such a delay amount to not actively co-operating? The devil is in the detail and currently there is no detail of this proposal so as usual with the Government's immigration changes, it will probably be a 'work in progress'.

A more concerning proposal is to remove the warning letter to first time offending employers which is based on the Government's arbitrary reasoning that employers should know the rules by now. However, many new employers or existing employers who have not in the past needed to employ migrant workers may have no experience of the system. Removing the warning letter may deter first time offending employers from actively co-operating and reporting suspected illegal working especially as much illegal working goes undetected by the authorities despite the Government's recent 'Go home or face arrest' campaign fiasco which faced a fierce response.

The good news is that the right to work check requirements are actually quite straightforward provided that employers adhere to the rules. The following top ten tips are a survival guide for employers when undertaking the checks to establish a statutory excuse against a civil penalty.

1. Undertake right to work checks before employment commences
2. Only accept original documents from the Home Office's prescribed list, e.g. passport
3. When verifying a passport, check the passport is valid, that the date of birth and photograph match with the worker's appearance and the name is consistent with any other information provided
4. If there are concerns over the inconsistency of the photograph and the worker, always ask for an explanation and make an attendance note of the discussion and reasoning if satisfied with the explanation given
5. Employers are not expected to be experts at identifying fraudulent passports or biometric residence permits, but if in doubt, call the Home Office's employer helpline to verify the legitimacy of the UK immigration permission
6. Remember a passport's validity may have been extended and if so, a copy of the page endorsed with the extension should be taken
7. Check the validity dates of immigration permission to ensure it has not expired and permits the type of work which will be undertaken
8. A copy of a document should be made in a format that cannot be tampered with, e.g. a photocopy, and for passports, a copy of the front cover, photograph and details page and any page containing the relevant immigration permission or both sides of the biometric residence permit should be taken. All copies should be signed and dated.
9. Care should be taken outsourcing right to work checks to third party screening providers, as it is not possible to renounce responsibility should they get it wrong
10. Keep up to date with changes in the law and policy

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