It’s a distressing experience for an organisation when, without warning, it receives a civil penalty UK immigration notice.
A civil penalty notice informs an organisation it has employed a person who did not have permission to work in the UK, in breach of section 15 of the Immigration, Asylum and Nationality Act 2006.
Responding to a Civil Penalty for Illegal Working
A business can either accept and pay the civil penalty for illegal employment, or return an objection form.
Acceptance is encouraged by the Home Office. Payment plans can be arranged and if full payment is received within 21 days the organisation is rewarded with a 30% discount.
On the other hand, the objection process can appear risky and pointless.
Potential objectors are warned that if they elect to challenge the penalty, the Home Office may decide to increase it.
It may, for example, determine that the mitigation applied for an organisation’s cooperation is no longer applicable.
An objection may also seem futile. The review is, after all, undertaken by the same people who fixed the civil penalty UK immigration notice in the first place. They rarely change their mind.
While an objection can appear pointless, it is a necessary stage of the process. A right of appeal to the County Court only arises if an applicant has first formally objected to the decision.
Organisations may feel they have suffered an injustice that does not fit neatly within the narrow grounds of objection the Home Office deems acceptable.
While the Home Office is unlikely to take these matters into account, a County Court judge may be more willing to hear them.
Five Possible Objections to a Civil Penalty UK Immigration Notice
- No proof of the offence
If an appeal advances to the County Court, the Home Office will be required to prove an organisation has committed an offence under the Act.
Section 15 requires the Home Office to prove two things:
- A person did not have the appropriate right to work in the UK; and
- A business employed that person.
The Home Office must provide sufficient evidence to prove each of these elements and a valid defence may simply be that it has failed to do so.
A business may, for example, dispute it ever employed a person, because that person was working as an independent contractor or was engaged through a recruitment agency.
In the Court of Appeal case of James v London Borough of Greenwich  EWCA Civ 35, it was determined that a worker engaged through an agency does not become an employee merely because they have worked for a business for a long period. It was held that an employment contract could only be implied if a business insists on the agency supplying a particular person.
- The due diligence excuse
Under section 15(3) of the Act, an employer is excused from paying a civil penalty UK immigration notice if it shows it has complied with the ‘prescribed requirements’ in relation to the employment.
Those requirements are outlined in the Immigration (Restrictions on Employment) Order 2007.
An employer is excused from paying a penalty if:
- The employee has produced to the employer a listed document such as a UK or EU passport, Birth Certificate or Residence Permit;
- The employer has taken all steps to check the validity of the document and that the employee is the rightful owner;
- The employer has copied all relevant material and kept a copy for a period not less than two years after the employment has come to an end; and
- The employer checked any photograph and DOB and determined that it was consistent with the employee’s appearance.
If an organisation has complied with these requirements, it has the onus of proving that this exception applies by producing the relevant documents.
- The Home Office has exceeded its powers
A further basis for challenging a civil penalty UK immigration notice may be that the Home Office has obtained evidence unfairly or in excess of its statutory powers.
The Home Office has a wide range of powers to investigate and enforce civil penalties.
These powers may soon be increased by the Immigration Bill 2015-2016, which in its present form gives Chief Immigration Officers the power to close a business’ premises for up to 48 hours.
However, in 2014, John Vine, Chief Inspector of Borders and Immigration, published a damning report revealing that of the 1049 entries and searches that occurred in the 2013/2014 financial year, 59% were not justified and potentially unlawful.
- Statutory mitigating factors
When assessing the penalty amount to impose, the Home Office takes into account a number of factors:
- The nature of the checks carried out by the employer;
- The number of offences previously committed by the employer;
- If the employer reported suspected illegal workers to the Home Office; and
- Whether the employer cooperated with the Home Office in any investigation.
A civil penalty for employing illegal workers can be challenged on the basis that one of these relevant factors was not properly taken into account.
- Other mitigating factors
The wording of section 15 (2) of the Act, “The Secretary of State may give an employer who acts contrary to this section a notice…” suggests that the Home Office also has an overriding discretion not to issue a penalty at all, even where the elements of the offence have been proven.
The wording of section 19 of the Act, “The Secretary of State shall issue a code of practice specifying factors to be considered…”, rather than “specifying THE factors to be considered” suggests that the Home Office should also take into account other relevant factors that emerge.
It could be argued that this interpretation places a duty on the Home Office to consider all relevant factors and determine whether it is appropriate to issue a penalty at all, rather than take into account only the narrow considerations contained in the Home Office guidelines.
The expense, time and energy required to object and appeal a decision can seem excessive, but if a business receives a civil penalty UK immigration notice, there are significant consequences and many reasons to appeal a civil penalty for immigration.