17th March 2012
Immigration Penalty Set to Double
A draft Order has been laid before Parliament which, if approved would increase the maximum civil penalty for illegally employing migrant workers from £10,000 to £20,000.
Currently employers can be served with a penalty notice of up to £10,000 where they have illegally employed an adult who is subject to immigration control. The civil penalty has remained unaltered since 2008 and the Government were concerned that it was no longer a sufficient deterrent and did not reflect the financial advantage rogue employers gain from employing illegal workers. As a result, if approved, with effect from 6th April 2014 the Immigration (Employment of Adults Subject to Immigration Control)(Maximum Penalty)(Amendment) Order 2014 will increase the maximum civil penalty from £10,000 to £20,000.
An employer may establish a "statutory excuse", as a defence to being issued with a penalty notice where illegal workers are discovered, if they check original documents from a prescribed list ("List A" or "List B") before employing the individual. However, it is not enough simply for the employer to check the documents – the employer must also take reasonable steps to check the validity of the documents produced, take copies of the documents produced as evidence that the requisite documentary checks have been completed and retain such copies on file.
Documents under List A are those documents which confirm that the individual is a British, EEA national, dependant of an EEA national (with permanent residence) or has indefinite leave to remain in the UK. These documents need only be checked once to establish the statutory excuse. Documents under List B are those which confirm that the individual has limited leave to remain in the UK. In such circumstances the document check must be repeated every 12 months to retain the statutory excuse.
Where the draft Order is approved, it is believed that Right to Work compliance audits undertaken by the Home Office will increase. As a result, and given the significant increase to the maximum civil penalty, it is even more important for employers to:
- ensure that the requisite documentary checks are completed before an individual is employed;
- take copies of the documents produced as evidence that such documentary checks have been completed;
- retain such copy documentation on file together with a note, if possible, of when the documents were requested and produced; and
- where necessary, diarise a reminder to ensure that the requisite documentary checks are completed annually.