The minister for immigration, Robert Jenrick, revealed a crackdown on illegal migrant workers yesterday (7 August), which will see fines triple for employers.
The government release called the changes – which will also affect landlords – the “biggest shake up” of civil penalties in eight years.
Employers face a fine of £45,000 per illegal worker (up from £15,000) for a first breach and £60,000 for a repeat (up from £20,000).
According to reporting by The Telegraph of an anonymous source, nail bars, car washes, construction, social care and hospitality sectors will be “targeted in the enforcement”, which will make it “financially ruinous” to employ workers illegally and “put people out of business”.
However, advancements in technology have resulted in an improved quality of forged documents, says Yash Dubal, director and senior immigration associate at A Y and J Solicitors, who adds it is “not uncommon” for scrupulous businesses to get hoodwinked.
“[This makes] it challenging for employers, especially those without specific training, to distinguish between genuine and counterfeit documents. Some employers might inadvertently hire someone without the right to work because they were presented with what looked like genuine documents,” he says.
“Moreover, in sectors where there's a high demand for workers and rapid hiring is common, the chances of oversight can increase.”
But Dubal caveats that innocent mistakes and deceptions aside, employers are “ultimately responsible” for ensuring their employees have the right to work in the UK.
As immigration enforcement activity for illegal workers climbs by 50 percentage points since last year, People Management asks legal experts how to stay compliant and avoid costly mistakes.
Understanding the consequences
The first step for HR and employers is to understand why people may not have, or may cease to have, the right to work in the UK, explains Pam Loch, founder of Loch Associates Group. “For example, their leave has expired, they were prohibited from working in certain sectors, they presented incorrect or false papers or they did not have permission to stay or even enter the UK,” explains Loch.
She warns that under current legislation, a director could face five years in prison and an unlimited fine if they are found to have had “reasonable cause” to believe an employee did not have the right to work.
And turning a blind eye is not the right approach, says Martin Williams, partner and head of employment at Mayo Wynne Baxter, who argues that it is “relatively easy for the discerning employer” to check the status of someone’s documentation with the Home Office. “Not doing so indicates a willingness to turn a blind eye to such matters. This equates to a tacit approval of any attempted unlawful behaviour on the part of an insufficiently documented job applicant, as well as the actions of anyone who may have organised illegal entry to the UK,” says Williams.
He adds that an employer claiming to be fooled by fraudulent documents could have their pleas “fall on deaf ears” if they made “no effort to double check the documents are genuine” – and checking the documents with the Home Office should “flush out” any wrongdoers.
Guarding against innocent errors
There is “good news” for companies that make genuine errors, says Kelvin Tanner, partner in Charles Russell Speechlys’ immigration team, who explains that the civil penalty scheme for illegal working “affords an organisation a statutory defence against a civil penalty” where they have conducted a compliant right-to-work check. “Furthermore, the move towards online right-to-work checks should help prevent the issue of prospective employees presenting forged documents,” he says.
And Tanner explains that genuine errors do happen. “In many cases there is no intentional wrongdoing and an employer has simply failed to conduct a compliant right-to-work check,” he says.
Tanner outlines that, where an employer is liable, they could get a civil penalty reduction of £5,000 if they report a suspected legal worker, who they already have in employment, to the Home Office. Additionally, if the business can “demonstrate they have effective right-to-work checking practices” in place, along with other mitigating factors, then the Home Office may issue a warning notice.
But, to establish a statutory excuse against a civil penalty, HR must do one of the following before the employee commences employment, says Charles Avens, partner at Collyer Bristow:
A manual right-to-work check for everyone (the rule is obtain, check and copy the ID documents)
A right-to-work check using digital identity document validation technology via the services of an identity service provider (British and Irish citizens only)
A Home Office online right-to-work check (non-British and non-Irish citizens)
However, Karendeep Kaur, legal director at Migrate UK, says employers being fooled by forgeries is actually “not common” and advises that they obtain a “share code” and use the “online digital employer right-to-work check where possible, for a real-time check for evidence of right to work” – as this will provide a defence of a statutory excuse.
Meanwhile, Loch says HR should remember EDI during this process and take a “consistent approach” asking for right-to-work checks, not just “those who appear to be of non-British descent”.
Loch says this will reduce the risk of discrimination claims being brought by candidates and employees, plus a failure to observe the government’s code of practice of completing the correct checks “can be taken into account by an employment tribunal”, she warns.
This was evidenced in recent People Management tribunal coverage, in which a jobseeker was the subject of racial discrimination after a recruiter refused to accept her birth certificate as proof of her right to work, despite it showing she was a British national. Azma Khan was awarded £18,405.80.