Over recent years, the UK government has increasingly chosen to outsource much of the immigration enforcement function to employers, educators, landlords and providers of public services under a policy known as the ‘hostile environment’.
Since the updated Immigration Act 2016, it has been a criminal offence for companies to knowingly employ an illegal worker where they have ‘reasonable cause to believe’ the person does not have the right to work in the UK. This carries an unlimited fine and/or a prison sentence of five years.
Employers also face a civil penalty of up to £20,000 for each worker employed who does not have the right to undertake work in the UK, and potential disqualification from obtaining a sponsor licence.
Responsible businesses clearly want to avoid such sanctions, but they also need to protect themselves from an unfair dismissal claim from anyone who feels unfairly treated. The recent Windrush scandal has further complicated the picture by calling into question whether it is always possible to trust information from the Home Office as to the status of an employee.
It is essential that employers have robust, immigration-compliant onboarding and recruitment processes that mean the employer is protected, even if an employee is found not to have the right to work.
The main reason companies get themselves into trouble is through a lack of training of HR staff on why they are making copies of identity documents. For example, doing this on the first day of work will not provide the employer with a statutory excuse against the levy of a civil penalty.
Illegal working checks should also be implemented regularly, procedures reviewed and updated and new staff trained as to their importance. Employers should have policies to record and monitor visa expiry dates for their employees.
The main thrust of the revised immigration regime is that ignorance is no longer an excuse when it comes to employing an illegal worker. This is all very well for cases where an employer should know better, but if paperwork is forged or longstanding professional workers allege visa processing blunders then the question of what is a reasonable assumption or path to follow is perhaps harder to arrive at.
It is worth remembering that the ‘right to work’ legislation came into effect on 27 January 1997, so a civil penalty cannot be levied on a company if the illegal worker’s contract of employment commenced before this date and the individual has had continuous employment.
The recent Abellio case is also food for thought, showing the pitfalls of using illegality as a ground for dismissal. It is often wise to go through a process to make sure any termination is fair and not discriminatory, to avoid a potential claim down the line.
Windrush notwithstanding, we regularly see cases of the Home Office advising an employer that an individual does not have the right to work, where all the available evidence clearly shows the opposite. In such cases, businesses have a tricky tightrope to walk of ensuring they act in a reasonable manner to protect all interested parties.
Yes, if you are an employer with a public profile it can be reputationally damaging to be found to employ illegal workers, but get that illegality wrong and the reputational damage will be no less intense these days for a different reason.
Unfortunately, there is no ‘one size fits all’ approach to confirming whether an individual has a legal right to stay or work in the UK. Getting this wrong can have a devastating impact on the affected individuals and their dependants, as well as the employer concerned.
Companies need to be aware that the immigration regime is a minefield at the moment so extra care must be taken to be fair as well as compliant, to protect themselves from risk from all sides.
Andrew Tingley is an immigration law partner at Kingsley Napley