Increased Penalties for Hiring Unauthorised Workers

At the beginning of August 2023, an important update came from the UK Government regarding unauthorised workers. There will be a notable rise in penalties for companies failing right to work checks by employing unauthorised workers. This move, many argue, stems from the government’s keenness to curb the number of individuals crossing the Channel, perceived by many to be attracted by the UK’s seemingly favourable employment and living conditions. Increasing the penalties is also understood to be a measure for generating more revenue, similar to the recent hikes in visa application fees and the Immigration Health Surcharge.

Details were shared by the Home Secretary, predicting the implementation of these new rules in early 2024. However, an exact commencement date remains uncertain. In this article, we delve into the existing laws around right to work checks, the potential consequences of failing these checks, the proposed changes, and how employers can keep on the right side of the law.

Current Legislation on Right to Work Checks

Beginning with the Immigration, Asylum and Nationality Act 2006, the legislative branch introduced penalties for hiring unauthorised workers. Further amendments include Section 35 of the Immigration Act 2016, which states that employers commit an offence when hiring individuals without the appropriate immigration status.

Understanding Right to Work Checks

Such checks are crucial to ascertain if an individual has the legal standing to work in the UK. An individual is an unauthorised worker and unlawful to hire in the UK if they:

• lack permission to enter or remain in the UK or
• have invalid permissions, expired, or carry restrictions against working.

Employers must conduct these checks before hiring. 

Furthermore, regular inspections are advisable, especially for employees with limited time permissions.

Potential Repercussions for Hiring Unauthorised Workers

There are two main categories:

• The first category is that an employer knowingly hired someone without the correct permissions. Or would you have reasonable cause to suspect the employee does not have a right to work within the UK? Such employers may face imprisonment (up to 5 years) or limitless fines if convicted.
• The other example is an employer that unintentionally hires unauthorised workers, often due to insufficient checks. Such cases usually lead to substantial fines. Additional penalties can include business closures, court compliance orders, loss of Sponsor Licences, and more. Our earlier post provides a comprehensive overview.

Existing Penalties

The fine for a first-time offence stands at no more than £15,000 for each unauthorised worker. Repeat offenders face a hefty maximum fine of £20,000 per worker. The last time these rates were updated was in 2014. Furthermore, those fined get listed within quarterly Employers: illegal working penalties reports.

Upcoming Changes

The impending adjustments to the penalty structure represent a marked shift in the government’s stance on illegal employment. The core changes are as follows:

• First-time Offenders: The penalties for employers found guilty of hiring illegal workers for the first time will significantly increase. The fines will nearly triple, with the revised sentence reaching up to £45,000 for each unauthorised worker. Such a considerable surge underscores the government’s intensified efforts to dissuade businesses from negligent hiring practices.
• Repeat Offences: Employers with a history of violations will face even more stringent financial consequences. The fines for repeat offenders will soar to a staggering £60,000 per illegal worker. The increase in penalties for repeat wrongdoers highlights the government’s intention to create a severe deterrent for those who continue to flout employment and immigration laws.

The reason behind these heightened fines is multi-fold. Not only does the government wish to strengthen its stance against illegal immigration, but it also aims to ensure that businesses share the responsibility of maintaining legal employment practices. By introducing such steep fines, the government is sending a clear message to all companies in the UK: compliance with immigration rules isn’t just a legal necessity; it’s an ethical obligation.

It’s also worth noting that while these changes are substantial, they are in line with the broader push across various government departments to tighten regulations, encourage compliance, and ensure that the UK’s labour market remains fair, competitive, and legal. 

Navigating Right to Work Checks

Ensuring adherence to right to work checks in the UK is paramount for all employers. To provide a roadmap, we have curated a checklist to guide businesses through this often complex process.

1. Initiate Right to Work Procedures Early: Conducting comprehensive right to work checks is crucial before onboarding prospective employees. Employers should always reference the latest Home Office guidance, which is routinely updated to reflect changes in immigration laws. 
2. Timely Follow-Up Checks: Especially for employees with time-limited UK permissions, it’s imperative to initiate follow-up checks well before their authorisation expires. However, the official Home Office guidance recommends doing this as their permission period concludes. 
3. Document Retention: Store all vetted right to work documents. Key details include the check’s date and the personnel who performed it. 
4. Training & Expertise: Equip your HR team or those hiring with in-depth training on right to work check procedures. They must be adept at both understanding and executing their roles. 
5. Sponsor Licence Management: For employers holding a sponsor licence, all stakeholders must be well-versed in their specific responsibilities. It encompasses everything from right to work checks to timely reporting, ensuring full compliance. 
6. Zero Tolerance for Negligence: Never employ an individual without executing the mandatory right to work checks or if there’s a valid reason to believe they may be working unlawfully in the UK.

With the government amplifying its focus on immigration enforcement—seeing a 50% spike in activity this year compared to the last — it’s crucial for all employers, especially those with a sponsor licence, to ensure they remain compliant. Sponsors across various sectors, including the care sector, are being increasingly audited.

At Axis Solicitors, we’re dedicated to ensuring businesses uphold impeccable standards. Suppose you possess a sponsor licence and want a thorough review of your current procedures. In that case, our team offers a meticulous audit and compliance check. For those anticipating a compliance visit or audit, our seasoned UK business immigration solicitors are here to advise and assist. To protect your right to work procedures, reach out to our expert team.

Scenarios for Business Owners

Understanding the right to work checks is paramount for business owners in the UK. Let’s delve deeper into extended real-world scenarios that illuminate the intricacies of these checks.

The British Passport Holder

Sarah, a prospective employee, comes to your office for an interview. She impresses the team with her skills and experience. At the end of the meeting, she presented her British passport as proof of her right to work in the UK. Is merely viewing Sarah’s passport adequate for the compliance process? Or are there additional steps required to validate her eligibility?

EU National: A Verbal Assurance

Jakub, originally from Poland, applied for a position at your firm. During the pre-hiring paperwork, he mentions his EU nationality. However, he has yet to produce documentation to validate his status in the UK. You ponder over the situation. Does his verbal assurance fulfil the right to work obligations? Or is tangible evidence essential for adherence to legal requirements?

EU National: Passport in Hand

Another day, another interview. This time, Sofia from Spain presents herself. She informs you about her EU nationality and willingly shows her Spanish passport as proof. It makes you think – while the passport confirms her nationality, does it adequately vouch for her right to work in the UK? What else might be needed to be in full compliance?

Biometric Residence Permit Scenario

Amara, originally from Nigeria, is keen to join your team. She hands you her valid Biometric Residence Permit (BRP) at the end of a successful interview. You meticulously record a copy and make the essential notes. But a nagging thought persists – is this singular action ample in ensuring your right to work compliance? What additional steps, if any, must be taken?

The Tricky Case of Expired Immigration Status

Ravi has been an asset to your company for the past three years. He approaches you with a concerned look, revealing that his immigration status expired 48 hours ago. However, he hastily assures that he’d filed for an extension well before the expiry. Without any renewed documentation, you are wondering – Does Ravi’s verbal assurance safeguard you and your company from potential breaches in right to work protocols?

Each scenario represents the multifaceted challenges UK business owners often grapple with. If any of these situations resonate, or if you wish for an expert review of your right to work verification processes, Axis Solicitors is here to help. Let’s ensure your business remains in the right.

Trust Axis Solicitors

As the landscape of immigration laws becomes ever more intricate, especially with the imminent rise in penalties for employing unauthorised workers without correct immigration status, being equipped with accurate legal advice has never been more crucial. At Axis Solicitors, we understand the intricacies and nuances of such regulations.

Our seasoned legal professionals are ready to assist businesses in navigating these matters. From ensuring compliance with right to work checks to contesting unjust penalties, our priority is safeguarding your business’s interests.

Being proactive is vital, considering the significant implications these changes can have on your operations. We offer tailored solutions, fixed fee structures, and expert counsel to ensure you’re always on the right side of the law.

Stay informed, stay compliant. To discuss how these changes might affect your business and how best to prepare:

• Phone: 0800 048 7573
• Email: contact@axis.lawyer
• Appointment: Drop us a note through our enquiry form

Or, if you prefer a face-to-face interaction, do drop by our offices in London, Manchester or Birmingham. With us, your business can navigate the future with confidence.