Hot on the heels of the Government’s announcements last week of consultations on migrants using the NHS and illegal migrants renting accommodation, the Home Office has started a consultation on changing the civil penalties system for employers of illegal migrants.

The current civil penalty system was introduced in 2008. Its basis is that anyone employing someone illegally can face a civil penalty regardless of what they know of the employee’s immigration status. The only way to avoid such a penalty is to have checked and kept copies of specific documents which are set out in statutory regulations.

This broad thrust of the system is not changing. However, the proposals relate to details with the intention to ‘strengthen and simplify’ the current regime. Key elements of the proposals are:

  • increasing the maximum civil penalty from £10,000 to £20,000
  • reducing the number of documents which employers can rely on to avoid a civil penalty
  • reducing the number of factors that are taken into account when setting the value of a civil penalty
  • removing the requirement for annual checks on employee’s rights to work
  • changing the procedure for appealing against and enforcement of civil penalties

While the Government’s objective may be laudable, the proposals do not tackle the most difficult issue in this area. This is where someone may have the right to work but cannot produce documents that meet the statutory requirements that prove it. Recent cases in the employment tribunals have demonstrated how this can raise difficulties for employers needing to comply with both immigration and anti-discrimination law. Further restricting the range of documents that are acceptable proof of an individual’s right to work are likely to exacerbate this problem.

The consultation also suggests increased civil penalties for second and subsequent infractions. Large employers may well consider it unfair that no account will be taken of the size of the organisation when deciding if it is a ‘repeat offender’.

The consultation is open until 20 August 2013. Given the difficult legal issues businesses face in this area, we will be happy to assist with preparing responses.

Details of the consultation can be found here.