Tripled Penalties: Heightened Consequences for Employing Illegal Workers

On 22 January 2024, the maximum civil penalty for employing an illegal worker officially increased from £20,000 to £60,000. The new rules, which were announced by the Home Office in August 2023, form part of the Government’s wider strategy to make it “harder for illegal migrants to work and operate in the UK”. With employers now facing heftier sanctions for non-compliance, businesses must properly scrutinise the robustness of their right-to-work checks and procedures.

The changes

An illegal working civil penalty is a fine issued by the Home Office to an employer that either knowingly or unknowingly employs a person who does not have permission to work in the UK. An employer may also be liable if the employment of the worker is in breach of the conditions set out in their visa. Formerly, the civil penalty for an employer that committed a first-time breach was £15,000 per worker. For employers found guilty of repeated breaches, the penalty was £20,000 per worker. The new rules have now tripled the civil penalties for both first-time and repeated offenders, to £45,000 and £60,000 respectively per illegal worker.

The increased sanctions will be seen to bolster the measures available to the Home Office to punish “unscrupulous” employers, which already includes pursuit through the criminal courts. If found guilty of employing someone they knew or had reasonable cause to believe did not have the right to work in the UK, an employer can face the prospect of a maximum sentence of five years imprisonment and/or an unlimited fine.

What actions can employers take to prevent illegal working in their businesses?

A prudent employer may be able to invoke a statutory excuse against a civil penalty for employing an illegal worker by ensuring adequate right-to-work checks are carried out in line with Home Office guidance before any potential breach. However, navigating the guidance can be a complex exercise, especially for businesses that lack internal personnel to stay on top of compliance and keep abreast of any changes to the requirements imposed on employers. In addition, despite best intentions, employers may open themselves up to potential unlawful discrimination claims when conducting right-to-work checks. As such, the importance of seeking specialist immigration and employment advice cannot be downplayed and should especially be a priority for businesses that regularly recruit workers from outside the UK. As a starting point, employers should look at taking the following steps to minimise the risks of being liable for civil penalties:

• Begin carrying out regular periodic internal audits of all right-to-work records for their workers and properly appraise all procedures and systems in place as they pertain to right-to-work checks. By stress testing current practices, employers can pinpoint exactly where improvements can be implemented in the process.
• Provide all staff involved in completing right-to-work checks with regular ongoing training and ensure they remain informed of any changes to the guidance. Equipping staff in such a way will help elevate concerns of there being a knowledge gap in the business.
• Immediately seek specialist advice where any potential illegal working is identified in the business.
• Retain a law firm on hand to provide the business with specialist immigration and employment law advice where any right-to-work queries arise.

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