From the start of 2024, the maximum civil penalty for employing an illegal worker will be raised from £20,000 to £60,000. The Home Office also intends to consult on strengthening sponsor compliance action where illegal working is found. Employers should act now to bolster their right to work checking processes to minimise the risk of incurring penalties and being subject to sponsor compliance action.
On 7 August 2023, the Home Office announced the planned increases, which have been brought forward as part of the strategy to deter small boat crossings and, in turn, illegal working and renting.
What changes have been announced?
Illegal working civil penalties cover the situation where an employer unknowingly employs a person who does not have the required permission to perform the job in question.
From the start of 2024, the overall maximum illegal working civil penalty will be increased from £20,000 to £60,000. In addition, the starting point for a first breach will be increased from £15,000 to £45,000. The amounts applied are per illegal worker identified.
During 2023, the Home Office will also launch a consultation on options it is considering on more stringent compliance action against Points-Based Immigration System sponsors who have been found employing illegal workers.
What other sanctions are there for illegal working?
There is a separate criminal offence where an employer knows, or has reasonable cause to believe that they are employing an illegal worker. The offence carries a maximum sentence of five years' imprisonment and/or an unlimited fine.
An individual who works illegally also commits a criminal offence, which is punishable through up to six months' imprisonment and/or a fine. Their earnings may also be confiscated as proceeds of crime.
What can employers do to minimise the risks to their business of illegal working?
An employer is able to obtain a statutory excuse against liability for an illegal working civil penalty by carrying out right to work checks in line with Home Office guidance.
Complying with the guidance is sometimes not straightforward. There are various potential pitfalls that employers can encounter operationally and when seeking also to comply with employment law. We have covered some of these in the below articles:
- Immigration restrictions on employment in the UK and consequences of breach
- Compliance implications for employers when sponsored workers change role
- Home Office issues important update to right to work guidance for employers
- Employment law and immigration law: two awkward siblings
Actions employers can consider undertaking to minimise the risks of being liable for civil penalties and being subject to sponsor compliance action due to illegal working include:
- Carrying out periodic internal and/or external audits of right to work check documentation and processes;
- Providing ongoing training to staff involved in completing right to work checks;
- Taking specialist immigration and/or employment law advice where right to work queries arise; and
- Taking swift advice where potential illegal working is identified.
Many employers are increasingly reliant on their sponsor licences due to ongoing skills shortages in the UK labour market. Carrying out broader periodic audits of sponsor licence compliance and having a training program for staff involved in sponsor licence administration is therefore also recommended.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.