Home Office cracking down on illegal working in the UK

The civil penalties an employer may face for employing an illegal worker has tripled. From 13 February 2024 the maximum civil penalty for employing an illegal worker rose from £15,000 to £45,000 per worker for a first offence and from £20,000 to £60,000 per worker for repeat violations. It means there is now a significantly higher financial risk to employers of failing to carry out compliant right to work checks.

That risk is heightened given the chance of a Home Office compliance visit is at an all-time high. In a press statement the Home Office fired this warning: “Immigration enforcement activity has been stepped up with visits including those targeting illegal working, now at their highest levels since 2019, up 50% on last year. We have already arrested more people in 2023 than during the whole of 2022 as a result of this activity.” 

That was seven months ago and we know the Home Office enforcement team has been on a recruitment drive since then so we expect levels to be even higher now. So, what steps can employers take to minimise the risk of hiring illegal workers and, if the Home Office does come calling, and ensure the inspection goes well? Earlier, I caught up with immigration specialist Alex Wright who joined me by video-link to discuss this. First question: what help are clients asking for?

Alex Wright: “Yes, a lot of clients do come to us and go, this is what we're doing, is this good enough, what is our risk level, and for them we can do a whole bunch of stuff. We can talk to their key personnel, we can talk to their sponsored workers, we can review their policy documents and come back and say, you know what, this is 90% perfect, here's the 10% you could improve on but  generally we find that employees who are proactive about this don't generally have problems. There are certain sectors that we know that the Home Office are prioritising at the moment. We are very aware that the Home Office are focusing on the health and social care sector as an area of right to work checks so we are currently working with a lot of our clients in that sector to try and just make sure they're watertight because we know that that is an area of concern for the Home Office with illegal working generally.”

Joe Glavina: “The Home Office has made it clear that anyone with responsibility for carrying out right to work checks needs to have regular, in-depth, training on conducting those procedures. Thinking about the training your team offers, what does that look like and who is it aimed at?” 

Alex Wright: “So, we run very regular training on right to work and we aim that at different levels of detail depending on who we're dealing with an organisation. Obviously, generally, for central team, HR team, recruitment team, we've run very detailed training that goes into exactly what you need to do to do a right to work check, what the black and white detail of the law is and what we also do, which a lot of our clients have found useful, is broader training for their wider team. Maybe not the people are doing the checks day to day but, essentially, this is what you should be looking out for, these are the red flags, this is when you should be concerned, and this is when you should be contacting a member of the HR team to make sure that you're doing it right before you get somebody to start. So, we try and do it at different levels depending on how broad the organisation requires their training to be.”

Joe Glavina: “Of course, the right to work rules have changed a lot over recent years so it has been a challenge for employers to keep on top of them and I know you carry out audits for clients to make sure their procedures are in line with them. I guess you’re doing a lot of that type of work with clients. What does that involve?”  

Alex Wright: “Yes, we do we do a fair amount of audit work and that can be quite chunky and, again, it really depends on the requirements of the client. There are people who come to us just on a regular basis who just want to know that they're still doing things, okay. They've not had any issues with the Home Office, they just want to know that their procedures and right to work policies are in check and that they are at very low risk. We'll talk to their key personnel, we'll interview key staff, we’ll try and get an understanding of what they do, we'll have a look through a few files of international workers just to make sure they're all up to date, and then we'll come back to them with a report and let them know where they are going right, where they're going wrong, and what they can improve on. We also do have a situation where people come to us after they've had an incident with the Home Office, where they've had a compliance visit, and maybe there are concerns that have been raised and that tends to be even more detailed work where we really are trying to figure out what's gone wrong, how it can be fixed and how we can assure the Home Office, going forward, that that client is low risk and has understood the concerns that have been raised and how they've made procedural developments to ensure that these things are very unlikely to reoccur.”

Joe Glavina: “Finally, Alex, we know that Home Office compliance visits are happening much more frequently there days. What happens exactly?” 

Alex Wright: “Yes, in terms of how compliance visits operate from the Home Office, there are two ways in which they can happen. One, they can just show up out the blue, they are perfectly entitled to do that to any workplace, they can show up with absolutely no notice and interview whoever they want, ask for access to whatever records they want. The other type that we get, which is more common particularly with large sponsors, is the Home Office will let you know they are coming. They will not necessarily give you the most notice, they might give you a week or two, but they’ll  generally ask you for the types of documents they want to see in advance. They might ask for HR records, they might ask for copies of right to work policies. So, generally if you're an employer who's on top of this and you've got those documents to hand, you're normally going to find those visits quite easy, but generally when we know compliance visit is coming, we will work with the client to ensure that they've got access to those documents, they know the points the Home Office is going to be picking up on, that their key staff are prepped for interview and they understand the records that Home Office is going to need, and also to make sure that things are accessible for the Home Office. I know it sounds really stupid, but if you let the Home Office go digging they can effectively go wherever they like, whereas if you prepare a dossier for them, and you get the documents in place, and you get the right people in place, you can take more control of things and generally get a more positive outcome.”

The tripling of the civil penalties came into force via statutory instrument with effect from 13 February 2024, and on the same day an updated code of practice was published on preventing illegal working. The new code should be applied to all right to work checks from 13 February 2024 onwards, including where a follow-up check is required to maintain a statutory excuse. We have put a link to that code of practice in the transcript of this programme for you. 

LINKS
- Link to Code of Practice: ‘Illegal working penalties: codes of practice for employers’