Last year, the Government consulted on changes to the civil penalties regime for prevention of illegal working. Some of the proposed changes are now being legislated for.
In the Immigration Bill, which has passed the House of Commons and is currently being discussed at the House of Lords, there are changes to:
- the procedures of objecting a civil penalty; and
- enforcement of civil penalties by the Home Office.
Under the Immigration Bill, employers issued with a civil penalty will first have to raise objections to the Secretary of State to carry out an administrative review before an appeal at civil courts can be brought. Although this will save costs for the Government, employers will not be able to recover the legal costs up until the appeal stage and, therefore, defending wrongly issued civil penalties is likely to become more costly.
The Bill will also allow the Home Office to register an outstanding penalty with the County Court so that it is enforceable immediately once the 28 days objection period lapses. This will allow the Home Office to take enforcement action sooner and employers will have no right to file a defence or dispute the debt at this stage.
These changes will come into force with the passage of the Immigration Bill which is estimated to be late 2014.
In the meantime, the Government has published draft regulations to increase the maximum civil penalty from £10,000 to £20,000 per illegal worker. It is expected that these will come into force in April 2014.
However, details of how much penalties may be reduced through co-operation with immigration officers on the day and/or partial checks made by employers previously have not yet been announced.
Another part of the consultation last year was to "simplify" the process for employers to carry out checks by:
- reducing the number of acceptable documents;
- removing the requirement for annual checks on employees with limited leave to remain (documents in list B in the prevention of illegal working guidance);
- providing more guidance to employers;
- extending the grace period to carry out prevention of illegal working checks from 28 days to 60 days for employees under TUPE arrangements.
Risks of simplifying the process too much were previously discussed because potential employees who are legally allowed to work in the UK may not be able to produce documents that the Home Office deems acceptable. Furthermore, removing the annual checks requirement could still lead to problems for employers found to be employing a person with expired leave to remain later on.
While no documents to implement these changes have been published yet, please look out for updates on these changes in the future.
Prevention of illegal working and the issue of civil penalties remain a complex area. The Penningtons Manches immigration team works closely with colleagues from our employment team to ensure that our clients receive both immigration advice in relation to prevention of illegal working and employment advice surrounding issues of discrimination.