To combat illegal working the Home Office has published two new orders tackling the issue of employing illegal immigrants.
The Immigration (Restrictions on Employment) (Codes of Practice and Amendment) Order 2014, regarding the prevention of illegal working, includes guidance on the factors that will be considered when determining the level of civil penalty and the Immigration (Employment of Adults Subject to Immigration Control) (Maximum Penalty) (Amendment) Order 2014 increases the maximum penalty from £10,000 to £20,000 per illegal worker.
The Code updates the February 2008 Code of Practice and includes details on changes to the illegal working scheme. The key provisions of the Code include:
- removal of the requirement to conduct repeat document checks every 12 months, (instead linking repeat checks to the expiry of the visa);
- a grace period of 60 days from the date of a TUPE transfer to correctly carry out initial statutory document checks in respect of new, transferring employees;
- preventing employers appealing against a civil penalty unless they have first made an objection to the Secretary of State; and
- allowing civil penalties to be recovered as though they were due under an order of a court and pursued without further order.
The Code incorporates comments from the Equality and Human Rights Commission and advises employers to have clear written procedures for the recruitment and selection of all workers. It recommends that employers carry out statutory immigration checks for all prospective workers and not simply those from an ethnic minority or with a foreign accent.
Civil penalties are intended to be proportionate to the level of non-compliance and are therefore calculated on a sliding scale. The Code sets out the factors considered in the event of a potential breach, including whether there is in the first instance a ‘Statutory Excuse’, the severity of the breach and the penalty to be imposed.
If a breach is established, a starting point for calculation of a penalty will be determined (potentially £20,000 in the event of a serious breach). An employer might be able to reduce the penalty by demonstrating that it had, for example, reported suspicions about the right to work of one or more illegal workers, actively co-operated with the Home Office investigation and had effective recruitment practices in place.
An employer offending for the first time might also secure a further reduction in the penalty by payment of the penalty in full within 21 days of the penalty notice being issued.
As the government seeks to reduce the number of migrants entering the UK and reduce the number of illegal workers, it is beneficial to review your current practices to ensure that they are up-to-date and do not fall foul of the tightening restrictions being put in place. Our team of immigration practitioners are able to review your procedures and guide you through what is required to establish the ‘Statutory Excuse’, mitigate your position in the event of breach and, most importantly, safely employ those individuals that are of most benefit to your business.