Immigration Law

What happens if you accidentally employ an illegal immigrant?

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What Happens if you Accidentally Employ an Illegal Immigrant?

Don’t be lulled into any sense of false security on employing illegal immigrants, accidentally or otherwise: the stakes for employers are high. Hefty fines can spell the end of an SME and with imprisonment always looming as a final sanction for company directors, the prevention of illegal immigration is yet another thing for business owners and Office and HR Managers to add to their never ending “To Do” lists.
Whilst the vast majority of employers won’t actually set out to employ an illegal immigrant this isn’t the end of the matter because UK law places employers under an additional obligation to take an active part in the prevention of illegal working. What this means is that employers are legally obliged to check that all of their prospective recruits and their existing employees actually have a right to work in the UK. Employers who fail to carry out these so-called “Right to Work Checks” and who accidentally employ illegal immigrants are also liable to severe sanctions. The Right to Work Check is therefore a very important thing to build into your standard HR practices and to get right!
Employers who fail to perform the so-called “Right to Work Checks” correctly, could end up facing any or, all of the following:

  • A fine of £20,000 per failure (so per employee!) If illegal working is identified
  • County Court judgment
  • Tier 2 Sponsor Licence revocation
  • An adverse impact on the ability to obtain future credit
  • Disqualification of offending company directors
  • Inclusion on the Home Office’s civil penalty offender list
  • Bad press, reputational harm: which in turn result in a hit on profits
  • Forced cessation of trading

The only way that an employer can protect itself when it comes to the prevention of illegal working is to actually carry out right to work checks on its staff. If an employer can show that it has carried out the checks, this will give it a defence in the case that an illegal worker slips through the net and their employment continues in error. Without this defence (which is sometimes known as the “statutory excuse”), an employer faces very little, if no, prospect of defence.
Employers who are found to have knowingly employed someone illegally and who cannot establish a statutory excuse will be liable to an unlimited fine or imprisonment of up to 6 months (or both). Following conviction on indictment, the employer may also be subject to imprisonment for a maximum period of five years. The implications of this are probably not worth thinking about…

What do I need to do obtain the “statutory excuse”?

Quite simply: you need to conduct basic documentation checks on your employees. The checks should form part of your recruitment process and they must be carried out indiscriminately on all prospective employees, regardless of nationality, race or ethnicity. Singling out certain classes of individual could equate to discrimination.
The right to work provisions are set out in legislation and there is also Home office which guidance sets out employers’ duties in three key steps referred to: OBTAIN- CHECK- RETAIN. The steps are self-explanatory and employers should obtain the documentation specified by the Home Office guidance; check it for authenticity and then keep a record of it.
The Home Office has dragged itself into the 21st century(!) And there is an online Employer Checking service available too for employees with certain residence permits and card or who have status under the EU Settlement Scheme. The Employer Checking Service is a free online service to enable employers to more readily meet their duty to conduct Right to Work checks on employees. An employee does need to give their consent to an online check and where an employee withholds their agreement, an employer should continue to perform manual document checks.

If you would like to understand more about your obligations in respect of Right to Work Checks and how to protect your business against the threats of illegal working then we can help. Our Business Immigration specialist, Charlotte Geesin can guide you through your obligations, review any existing Right to Work process you may have in place and help you to issue a system and policy to ensure that whatever your current situation, you will have this matter covered going forward. Charlotte can be contacted on 01274 864999.

 

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