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Recrutiment & Employment Confederation

Civil Penalties set to increase for illegal working

Legal news and views

This is a guest blog by Ikram Malik, Business Immigration Partner at Brabners LLP 

The Home Office recently announced an increase in civil penalties for employers that are found employing illegal workers. 

The civil penalty for employers for a first breach will increase to £45,000 per illegal worker from £15,000, and the current maximum for repeat breaches will increase from to £60,000 per illegal worker from £20,000.  The Home Office has not yet announced a date when the new penalties will come into force but indicated that it will be in early 2024. 

Are UK businesses compliant? 

A recent report published by UK Visas and Immigration revealed that businesses in the UK were issued civil penalties amounting to over £ 6 million between 01 January and 31 March 2023. The civil penalties would be over £ 18 million, if the level of breaches were to remain the same once the new penalties are introduced.  

Establishing a Statutory Excuse 

It is the employer’s responsibility to prevent illegal working in the UK. Employers can do this by conducting right to work checks before a worker commences employment, which will give them a statutory excuse against a civil penalty. 

A statutory excuse provides an employer a defence against a civil penalty where a worker is found to be illegally working. Employers must do one of the following before an employee commences work: 

  1. A manual right to work check; 
  2. Right to work check using IDVT via an IDSP (British and Irish citizens with valid passport only); 
  3. Home Office online right to work check using a sharecode (non-British and non-Irish citizens) 

Employers must use the Employer Checking Service (ECS) where an individual is unable to provide a sharecode as they have an outstanding application with the Home Office, administrative review or appeal against a decision by the Home Office. 

Can I accept a Biometric Residence Permit as evidence of right to work? 

Changes introduced by the Home Office in April 2022 meant that employers can no longer accept a Biometric Residence Permit (BRP) as evidence of right to work. Employers must conduct an online right to work check for all non-British and non-Irish nationals. 

The Home Office have announced their intention to increase compliance visits to crackdown on illegal working. The significant increase in penalties makes it all the more important for employers to ensure they understand how and when to conduct the right to work checks. The guidance for conducting right to work checks is updated regularly and it is imperative for employers that they keep up to date with the changes. 

For further details and information on remaining compliant when conducting right to work checks, contact the immigration team at Brabners.