What is the Home Office process for issuing a civil penalty notice for illegal working?
Through the civil penalty regime, UKVI ensure employers are compliant with immigration rules by conducting effective Right to Work checks and that all personnel have the relevant permissions to work in the UK.
Where businesses are found to be in breach of their immigration duties, a civil penalty for illegal employment may be issued, comprising a fine of up to £20,000 per breach.
Civil penalties are highly lucrative for the Home Office, with tens of thousands of pounds of fines issued to hundreds of businesses on a quarterly basis.
Taking preventative measures is the most effective way to avoid falling foul of immigration breaches, but if you are facing UKVI action and a possible civil penalty notice for illegal working, it can be helpful to understand what the Home Office process is before you decide your next steps.
Stage 1: Information Gathering
Where the Home Office becomes aware or suspicious of potential immigration breaches, such as from an anonymous tip-off (think disgruntled former employee or unhappy customer), they have the power to act on the information by contacting you to request a visit to your business premises.
During the site visit, the Home Office will examine all HR and onboarding processes and documentation relating to Right to Work checks.
The Home Office does not need to have concrete evidence of any non-compliance or illegal working to conduct a site inspection.
Where evidence of illegal working is found, a referral will be made to the Civil Penalty Compliance Team.
The Civil Penalty Compliance Team will assess the information and evidence gathered to date, and issue an Information Request to the business for the following:
- Confirmation as to whether you are the employer of the workers identified. If this is not the case, details are requested of the business who is employing the identified workers.
- Confirmation as to whether Right to Work document checks have been carried out, and when they were carried out.
- Confirmation as to whether reports were made of suspected illegal workers.
- Confirmation as to whether you employed the identified workers and when.
You will be given 10 days to return the completed Information Request Response Form and supporting documents.
Your response to the Information Request will play a decisive role in the level of civil penalty issued. Instructing expert legal representation to prepare a detailed response is crucial at this stage.
For example, the Civil Penalty Compliance Team will expect you to complete only the required information in the Response Form, which does not give you the opportunity to argue against the allegations. However – we advise that representations be made, providing a detailed defence against each allegation, to be submitted alongside the Response Form.
Stage 2: Civil Penalty Notice Issued for Illegal Working
The Civil Penalty Compliance Team will then consider your response to the Information Request.
It may be decided at this stage that a Formal Warning Notice – with no penalty – will be issued, or a reduced civil penalty if they are satisfied that successful mitigation has taken place as a result of the information provided in the response.
If a Civil Penalty Notice is however to be issued – around 220 are served every month – you will have 28 days to make full payment, set up an instalment plan, or object to the penalty.
If you have not been found to be employing illegal workers within the last 3 years, you may be provided with the Fast Payment Option in your Civil Penalty Notice which entitles you to a 30% reduction in the penalty if payment is made in full within 21 days of the Civil Penalty Notice issue date.
As the owner of a business, you will need to decide whether it is worth outlaying the costs on instructing legal representation to object against the Civil Penalty or whether you should pay the penalty.
This decision will depend on whether there are strong grounds to object against the allegations in the Civil Penalty Notice, which will result in the penalty being reduced.
Appealing a Civil Penalty Notice Illegal Working
Employers who are served a civil penalty notice for employing illegal workers are permitted to pursue an appeal.
This can be to either lower the level of the original penalty, or to remove the penalty altogether.
The appeals process is, however, complex, and you have a limited amount of time to weigh up the pros and cons and make a decision based on the options open to you.
Challenges have to be made on specific grounds, within specific timeframes, and be supported by relevant documentary evidence. The approach you take should be dependent on your organisation’s circumstances and the level of the civil penalty notice you have received.
Note however that the Home Office has the power to increase the level of the original penalty at the appeal stage – so it is important to proceed with this only where you are confident in the merit of your challenge following professional advice.
It is crucial at this stage to obtain specialised legal advice as it is within the Home Office’s rights to issue an increased civil penalty in response to receiving an objection.