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Right to Work Check penalty increases for employers

The Home Office have recently announced further changes in immigration policy in attempts to clamp down on unlawful migration; this time with the effect of targeting employers.

The current law

Currently, the civil penalty for a first-time breach of employing someone without the right to work is £15,000 for each worker without lawful immigration status. The penalty for repeated breaches is £20,000. In addition to the civil penalties, there is a maximum 5-year prison sentence for employers who are found guilty of employing someone who they knew or ‘had reasonable cause to believe’ did not have a legal right to work in the UK.

The changes

Under the recently enacted Illegal Migration Act 2023, the fines are set to triple from the start of 2024. The maximum civil penalty for a first-time breach will increase to £45,000 and for repeated breaches it will increase to £60,000. This is significant for any business and for many businesses could be devastating. The serious criminal implications for employers will remain the same under the new law.

The purpose of the reforms is to deter people from entering the UK by irregular means with the hopes of obtaining employment. Minister for Immigration Robert Jenrick has said “There is no excuse for not conducting the appropriate checks and those in breach will now face significantly tougher penalties.” Home Office visits targeting workers without lawful immigration status are up 50% since last year; there is therefore a serious risk of prosecution for employers who are not compliant.

How should employers respond to the changes?

Employers should ensure that they have appropriate right to work checks and procedures in place and that adequate training is provided to staff who complete the checks. Carrying out checks in line with Home Office guidance can provide an employer with a statutory excuse against liability for a civil penalty; however the guidance is not always straightforward to follow and specialist advice should be sought in cases of uncertainty. Employers should also carry out regular audits where possible to ensure that they remain compliant with immigration law. There is no legal obligation to do follow-up right to work checks during the course of employment, unless the employee’s right to work is time-limited (i.e. they have limited leave to remain and work in the UK, with a visa that must be extended in time).

This issue presents potential conflict between immigration law and employment law. It is important for employers to be conscious of the risk of unlawful discrimination when carrying out right to work checks. To mitigate this risk, checks should be carried out consistently on all prospective employees, including British citizens, and assumptions should not be made about an individual’s right to work or immigration status. The check must be completed before employment starts.  Employers should also be cautious about implementing a policy which automatically refuses to consider applicants who may not have a right to work.

Best practice is therefore to consider applications based on merit first and consider work permit issues at a later stage of selection. When faced with an applicant without a right to work, employers with adequate resources can consider making an application to UK Visas and Immigration so that the appropriate authority can make the decision. If an employer is faced with an existing employee who loses their right to work, employment and immigration law advice should be sought, and a fair procedure should be followed if the resulting decision is to terminate employment. Failure to follow a fair procedure can leave the employer open to both unfair dismissal and discrimination claims.

Conclusions

The process of completing right to work checks is not set to change under the new legislation. Employers should already be conducting appropriate checks for all employees so in theory should not be concerned about implementing changes. However, employers who are unsure whether their current procedures are sufficient should consider reviewing their processes with the aid of immigration and employment advice, to ensure that they satisfy their obligations.

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