Prevention of illegal working regime – beware of the pitfalls

Failure to comply with the updated rules is fraught with risk. Edward Wanambwa summarises how to ensure compliance

As most employers know, in May 2014 the civil penalty levied against companies caught employing illegal workers was increased from up to £10,000 per illegal employee to up to £20,000.

Some employers may not be aware, however, that the prevention of illegal working regime was tightened further by the Immigration Act 2016. This legislation included provisions that:

  • extended the criminal offence of knowingly employing an illegal worker to include scenarios in which an employer has ‘reasonable cause to believe’ that a person is an illegal worker;

  • more than doubled the period of imprisonment, following a conviction on indictment, to up to five years; and

  • created a power to close businesses (for a limited period) that continue to employ illegal workers.

In addition to possible civil and criminal sanctions, there are separate risks for businesses that hold a sponsor licence and breach the prevention of illegal working regime, including a risk revocation or downgrading of the sponsor licence.

What should employers do to comply?

Employers can obtain a so-called ‘statutory excuse’ (which is a form of limited defence) against paying a civil penalty if they carried out the correct ‘right-to-work checks’ before the start of employment.

A core aspect of carrying out right-to-work checks is the ‘three-step check’ system. These are:

Step 1 – ‘Obtain’: obtaining original versions of one of the more acceptable immigration documents. So-called ‘List A’ documents (such as an original UK passport) provide an employer with an ongoing statutory excuse without the need to carry out follow-up checks. ‘List B’ documents only provide a time-limited statutory excuse.

Step 2 – ‘Check’: checking the document’s validity in the presence of the holder, including verifying that photographs and dates of births are consistent across documents and with the person’s appearance, ensuring that expiry dates for permission to be in the UK have not passed and checking that documents are genuine, have not been tampered with and belong to the holder.

Step 3 – ‘Copy’: making and retaining a clear copy (in a format that cannot be manually altered) and recording the date the check was made and retaining it securely, either electronically or in hard-copy format. Copies must be retained securely for not less than two years after employment has ended.

However, the statutory excuse can be lost in numerous ways. Home Office guidance stipulates that the statutory excuse can be lost if, for instance:

  • it is reasonably apparent that the person presenting the document is not the person referred to in the document;

  • if the employer knows or has reasonable cause to believe that the individual did not or does not have immigration permission to work in the UK; or

  • the employer knows the documents were false or did not rightfully belong to the holder.

The prevention of illegal working regime is a complex and multi-faceted area and there are many potential pitfalls for unwary employers. It would be prudent for employers in the UK to place compliance with the prevention of illegal working regime in a prominent position on their risk registers.

Edward Wanambwa is a partner and the head of the immigration team at Russell-Cooke