Background

All employers have a responsibility to prevent those without lawful immigration status from working in the UK.

The illegal working provisions of the Immigration, Asylum and Nationality Act 2006 came into force on 29 February 2008. Section 15 of the Act allows the Secretary of State to serve an employer with a notice requiring the payment of a penalty of a specified amount where they employ a person who is not permitted to work legally within the UK.

On 7 August 2023, the UK government announced that there would be increases to the civil penalty fines for employers who employ illegal migrants who do not have the right to work or reside in the UK.

The Home Office has now confirmed that the increase to civil penalty fines for employers will come into force on 13 February 2024. From this date, the fine for employers who employ illegal workers will more than triple (up from £15 thousand to £45 thousand per illegal worker for a first breach, and up from £20 thousand to £60 thousand for repeat breaches). The civil penalty increases for employers, last increased in 2014, are significant.

To ensure protection from the above civil penalties, employers need to ensure that they establish a statutory excuse for right to work checks.

In order to establish a statutory excuse against a civil penalty, in the event that an employee is found to be working illegally, employers must conduct right to work checks on all employees on or before their first day of employment, in line with Home Office stipulations.

From 13 February 2024, a new Code of Practice on preventing illegal working: Right to Work Scheme for Employers here will also be implemented. This new Code of Practice 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.

Right to work checks, which were conducted prior to the implementation of the above Code, will be considered by the Secretary of State in line with the version of the Code which was current at the time the right to work check was conducted.

Recommendations

Considering the substantial increase in civil penalty fines, we recommend that employers ensure that they have robust systems in place to conduct Home Office compliant right to work checks.

If it has been some time since employers last took stock of their internal framework for complying with their sponsorship duties, it may be beneficial to consider completing a health check to ensure that right to work check files and processes are compliant with the Home Office's right to work requirements.

Furthermore, it is important to ensure that regular training and reminders are provided to staff responsible for conducting right to work checks, so they are aware of the processes and steps which need to be taken to ensure compliance and the serious consequences in case of a breach.

If you have any concerns regarding your internal processes or require any further information or support in relation to the above, please contact our Mobility team.