All employers have a duty to carry out document checks on non-EEA migrants before employing them to ensure that anyone they do employ is legally allowed to work in the UK. The employers' guide to right to work checks published by the Home Office on 12 July 2016 aims to reiterate the importance of preventing illegal working in the UK.
The guidance covers all aspects of right to work checks, from how to conduct the checks and what documents are acceptable as evidence of the same. Employers should take advice to ensure that their procedures are compliant. There are serious consequences if employers fail to carry out appropriate checks and do not properly retain clear copies of employees' right to work documents. These can include the imposition of civil penalties or even criminal prosecutions.
Under section 15 of the Immigration, Asylum and Nationality Act 2006, an employer may be liable for a civil penalty if they employ someone who does not have a right to work in the UK. In July 2014, the Home Office amended the Civil Penalty Scheme. Helpful guidance relating to these changes can be found in the Code of Practice on preventing illegal working civil penalty scheme for employers, dated May 2014.
The key changes made to civil penalties in July 2014 were that for first time breaches in a 3-year period, the starting penalty is £15,000 per illegal worker. For each subsequent breach in a 3-year period, the penalty is £20,000. An employer may rely on a statutory excuse, which is that they conducted all the checks required prior to employing the worker. If a statutory excuse cannot be made out or is not applicable, then the penalty may be reduced by way of "mitigating" factors, for example the employer had actively co-operated with the Home Office or the employer had reported suspected illegal workers to the Home Office. Any indicated mitigating factors could potentially reduce the penalty by £5,000 for each factor. Further, employers that make fast payments are entitled to a 30 per cent reduction in the amount. It is worth noting that the law surrounding civil penalties has not changed since it was last clarified in May 2015.
One important change introduced by sections 34 and 35 of the Immigration Act 2016 is the extension of the criminal offence of "knowingly" hiring illegal workers to include employers who have "reasonable cause to believe" that an employee's immigration status does not allow them to work in the UK. This amendment, which came into effect from 12 July 2016, significantly lowers the burden of proof required for a criminal prosecution against an employer. An employer who is convicted of this offence may be liable to up to five years imprisonment.
This change reflects the government's continued determination to attempt to reduce the number of illegal workers in the UK. What is clear is that they are now placing an increased onus on employers to conduct appropriate checks on their employees.
In light of the revised guidance and the increased risk of criminal sanctions, it is of the utmost importance that employers implement systems to conduct right to work checks on all migrant workers prior to the start of their employment in order to protect themselves from either civil or criminal liabilities.
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