The Home Office is picking up the pace on immigration compliance matters – we have seen increased activity on everything from right to work enforcement to visa curtailments as well as requests for further evidence across all aspects of sponsorship. We will be focusing on these and other challenges in our webinar on 14 September 2023: UK Business Immigration – Ten Tricky Sponsor Compliance Issues.

As part of this drive, the Home Office has announced that from January 2024, employer fines for a first breach will increase from £15,000 to a swingeing £45,000 for each employee found to be working without permission or in breach of their visa conditions. For subsequent breaches, the fine triples from £20,000 to £60,000 a time for each employee.

On announcing the increases, Minister for Immigration Robert Jenrick said: … “Unscrupulous landlords and employers who allow illegal working and renting enable the business model of the evil people smugglers to continue..”. This implies quite deliberately that the fines are aimed primarily at employers which intentionally flout their right to work obligations – some businesses may therefore think they are not at risk. In fact, fines can also be and often are issued to well-intentioned and generally diligent employers who have unwittingly fallen foul of their obligations — it’s just that “we will root out and punish severely people who have unsuccessfully tried their best to comply with our byzantine and ever-changing immigration rules” is somehow a politically less attractive soundbite. Of the hundreds of cases we have advised on (many of them for large, professional organisations), almost all arise out of a genuine oversight on the part of the employer, combined with an often understandable lack of awareness of the relevant rules. Whilst ignorance is rightly not a valid defence to a civil penalty, the UK right to work system remains complex and constantly changing. There are three different checks to choose from depending on an employee’s status (online checks are mandatory for some but not all employees), not to mention a myriad of add-on steps or additional verifications in certain circumstances, exacerbated by sometimes incomplete or opaque Home Office guidance (the detailed version of which runs to more than sixty pages).

The Home Office has also said that it will consult on options to strengthen action against businesses with sponsor licences which employ illegal workers. In other words, it is those who have been specifically licensed by the Home Office to sponsor non-British or Irish workers who are likely to be subject to greater scrutiny. In some cases, a civil penalty can lead to a sponsor licence being revoked, which would usually mean having to terminate the employment of all of your sponsored workers (not just those connected to any right to work breaches) with serious financial, operational and reputational consequences. In addition to this, employers who either know or have reasonable cause to believe that an employee does not have the right to work also risk personal criminal liability – resulting in an unlimited fine and potential imprisonment for up to five years.

What should UK employers do?

• Ensure that anyone with responsibility for carrying out right to work checks (including line managers, in-house recruitment and talent acquisition teams, not just HR) has regular in-depth training.
• Make sure you have robust systems for:
  • carrying out correct checks before employment begins and follow-up checks;
  • retaining relevant information; and
  • flagging visa expiry dates so that follow-up checks can be completed in good time.
• Carry out regular file audits to ensure you have the correct type of proof of the right to work on file for all employees (regardless of nationality) and take prompt action where proof is missing (seeking advice if necessary).
• Regularly refer back to the Home Office’s guidance especially: https://www.gov.uk/government/publications/right-to-work-checklist and https://www.gov.uk/government/publications/right-to-work-checks-employers-guide. Since this changes quite frequently and older iterations then become very hard to find in a rather Nineteen Eighty-Four as-if-they-never-were kind of way, ensure you take and retain a copy of the version you are relying on in making any particularly nuanced decision.
• The UK’s right to work regime is not straightforward, nor the penalties for tripping over it trivial – training and legal support is a worthwhile investment.

How Can We Help?

The civil penalty system exists to prevent illegal working, but certain aspects are overly complicated and seemingly (indeed, actually) minor errors can have significant consequences. Our Business Immigration team has vast experience in helping employers to avoid pitfalls and to find the right solution when things go wrong. Our expertise includes:

• advising on the correct right to work documentation for existing and prospective employees, including where there is a pending Home Office application or appeal.
• pragmatic risk assessments on the right course of action when an employee’s right to work is unclear, taking into account employment law obligations.
• successfully defending Home Office allegations of illegal working, saving clients hundreds of thousands of pounds by overturning civil penalties and avoiding a knock-on consequences for other employees.
• interactive, in-depth training tailored to meet the needs of your team.
• tailored right-to-work audit support – we can review your employee files for you or show you what to look for.
• strategic advice in relation to large-scale audits and TUPE transfers.