The Home Office is carrying out a consultation on the current civil penalty regime which applies to employers who are found to be employing those with no permission to work in the UK. The Civil penalty regime has been in place since February 2008 and imposes fines of up to £10,000 per employee found to be working without permission, together with a requirement for employers to carry out annual employment verification checks for those with limited leave to remain.

The Consultation and online survey makes it clear that the Home Office is considering the following changes to the current legislation:

  • Increasing the civil penalty from £10,000 to £20,000 for repeat offenders with a maximum penalty of £15,000 for the first time offenders
  • Simplifying the formula for calculating the penalty and the factors for reducing this where employers cooperate and report
  • Removing the current process of serving a warning letter on first time offenders
  • Considering previous civil penalties as an aggravating factor when determining the current penalty level
  • Reducing the number of acceptable documents which can be produced to simplify the right to work checks
  • Using a biometric residence permit as  the main acceptable document for right to work checks for most non-EEA nationals
  • Removing the current annual checks which employers need to carry out on any employee who has limited permission to reside in the UK and instead only requiring them to check at the end of their visa
  • Introducing measures to allow recovery of a civil penalty from directors and partners of limited liability businesses following failure to pay by the business

The proposed changes are welcome in that they appear to be aimed at simplifying the current regime for preventing illegal working and in targeting repeat offenders. In particular, removing annual employment verification checks for those employees with long term permission to work is welcome, as this is an unnecessary and burdensome requirement. However, removing the first warning process could mean that new employers and start-up businesses could now face penalties for first time inadvertent breaches without being given the opportunity to show they can be compliant. Also there are significant risks that by reducing the number of acceptable documents proving a person’s right to work, some migrants who are lawful long term residents without the new biometric residence permits will not be able to access employment. As part of the consultation process the Home Office is inviting businesses to undertake a short online survey which can be accessed here. Please click here if you wish to view the consultation document.