The Home Office has announced significant increases to the penalties employers will face if they hire illegal workers – triple what they currently are. We’ll hear from an immigration specialist on how employers should respond before the changes take effect in January.
From January, fines for a first breach will increase from £15,000 to £45,000 for each employee found to be working without permission or in breach of their visa conditions. For subsequent breaches - repeat offences - the fine triples from £20,000 to £60,000 for each employee for each occasion.
Writing about this for Out-Law, immigration specialist Shara Pledger says UK employers should review and, if necessary, update the procedures they have in place to ensure employees have a ‘right to work’ in the UK before the new sanctions take effect next year. She says: ‘Employers can obtain help from legal advisers in evaluating and improving right to work checking procedures.’
So, what does that help look like? Earlier Shara joined me by video-link from Manchester and I put that question to her:
Shara Pledger: “It can mean many different things for different organisations. A lot depends on the number of employees they have, things like staff turnover rate, that sort of stuff, because obviously right to work checks are something that will always be relevant at the point that a worker is first engaged by a business, but then also throughout the lifetime of their employment with that business. So, somebody with time-limited right to work will need to be rechecked, for example, if they make some kind of extension application or, perhaps, an application for settlement. So, for some organisations it might be very useful to have an independent person come in and just audit some of their records, and that might be every record they have if they're a particularly small company, or it could be a random selection if they're a much larger organisation. For others who feel that they have a good grasp of what those requirements are, and good records in place, it might be something like a policy review, just basically a quick sort of health check, once through, to make sure that things are up to date, that there are no policies that have been left behind when changes have been made, and there have been lots of changes over the past couple of years, of course. So, it means many different things to many people, everything from a quick look at records all the way through to actually coming in physically on site and conducting a sort of dummy audit as if we were the Home Office.”
Joe Glavina: “In your article, Shara, you talk about full policy reviews, file audits and stress testing current practices. Can you tell me more about those? What is it that you’re doing for clients?”
Shara Pledger: “Yes, a common issue that we find that a lot of our clients unfortunately experience is that while there can be really good strong policies that are maintained perhaps by a central recruitment team, or a central HR team, it’s when that actual activation of policy needs to filter down to things like line managers that things can become problematic and it can be difficult to make sure that line managers have received all the correct information and have read and digested all of those required policies. So, a recent piece of work that we've been doing with one of our clients is to actually produce flowcharts. So, something that's a bit more user-friendly, sort of takes the line manager through the process step by step to work out is this somebody that I should be checking the right to work of? But spoiler alert, you should be checking the right to work for everybody regardless of what nationality you believe them to be! Then once you have identified exactly what evidence that person has, what does that really mean? Just making sure that line managers actually get a grasp at the time that they're doing that first right to work check that this perhaps might not last forever, that they might need to have a reminder set for themselves to look again in a couple of years or, perhaps, even a shorter period. So, really, our focus has been on trying to get materials that are just very user friendly and have a practical application rather than just being an abstract piece of writing, effectively.”
Joe Glavina: “So, to give people an idea, Shara, what are the sort of mistakes that you’re uncovering typically?”
Shara Pledger: “Unhappily, a lot of the issues tend to be historic. So, what we've moved into over the past couple of years is a much more streamlined approach when it comes to right to work testing. A real benefit of the changes that the Home Office have made has been to remove a lot of capacity for human error from that testing process. So, if you look at the system as it exists today, the idea that you would have digital share codes for migrant workers, for example, that are then popped into the Home Office system, or with British or Irish workers you might perhaps be working with an independent third party that's conducting right to work checks on your behalf, testing the documentation for those people even though you'll follow up afterwards to make sure that it is indeed your employee, a lot of that is almost kind of taken out of the employer’s hands. They are reliant on a third party, or they're reliant on a Home Office system, to come back and actually tell them what that person's status is. If we rewind a few years, so back before the pandemic, back before things really began to change, what you see are far, far greater numbers of things like manual right to work checks on physical documents and as soon as people are involved in that process, unfortunately, there's the capacity for human error. So, just simple things like not clearly stating the date on which a check was completed, not correctly identifying who carried out the check at that time. Just a quick scribble of the date and then initials isn't enough. So, really, for a lot of our clients it’s about actually going back through those historic records and getting a good sense of how robust really are those checks? We might look on a spreadsheet and see that one's been done, but have we actually looked at that check to check that it's compliant and gives us the protection that we think it does?”
Joe Glavina: “How strict is the Home Office when it comes to enforcement, Shara? If a genuine mistake is made, let’s say a technical error, what’s their attitude to that?”
Shara Pledger: “Right to work checks are strict liability so as soon as you have had an illegal worker you are on the hook, effectively, for a penalty and then it's all about whether or not you've given yourself this statutory defence against that penalty that could be imposed against you. There are lots of different ways that you can use some of your cooperation with the Home Office to reduce the penalty. For example, if you identify a breach and you bring it to the Home Office’s attention you can reduce the penalty, for example, but the only way that you'll avoid it is if you have conducted the right to work check that you needed to conduct really. So, it's a difficult area for organisations to be in because if they have made a mistake several years ago, that mistake will come back to haunt them at some point, unfortunately. The thing that a lot of clients, however, do sometimes get confused about is what the penalty is for. You will only ever be liable for a civil penalty if there is an illegal worker. If you’ve had a hundred employees and you haven't checked a single one of them but they've all had the right to work at the time that they've been employed with you then you are not liable for a penalty but you are really rolling the dice because you don't know. So, the reason that people do checks is to just try and give them that shield against that sort of penalty and that restriction that can be imposed by the Home Office. It’s all about protection of the business and if the good, solid, checks aren't there then there is no protection in the event that something has gone wrong.”
Joe Glavina: “Finally Shara, anything else to add? A final message for viewers?”
Shara Pledger: “I think now more than ever really is a fantastic time for organisations to really be looking at their processes. Are your checks robust? Are they as robust as you genuinely think they are and do you have good solid policies in place that you could demonstrate to the Home Office in the event that something has gone wrong? The reason that now is such a great time to be doing that is because we know that these huge increases to penalties are on the way. At the moment, they are pretty extreme, we're talking of a starting point of £20,000 per illegal worker, albeit you can usually bring some money off that fairly easily, but once those go up and we're looking at a starting point of £60,000 per illegal worker, even with that mitigation applied, even if you cooperate, even if you've brought the issue to the Home Office’s attention, you will still be left with a very, very hefty bill on top of all of the issues about reputational damage etcetera, etcetera. So, it will get worse for organisations, effectively, and if there are steps that people can take now to give themselves a better protection when those penalties increase it would be really foolhardy not to take the opportunity.”
That Out-Law article by Shara and the immigration team is called: ‘Employers urged to test ‘right to work’ procedures after fines tripled’ and we’ve put a link to it in the transcript of this programme for you.
LINKS
- Link to Home Office press release
Tripling of fines for those supporting illegal migrants - GOV.UK (www.gov.uk)
- Link to Out-Law article: ‘Employers urged to test ‘right to work’ procedures after fines tripled’
Employers urged to test ‘right to work’ procedures after fines tripled (pinsentmasons.com)
