Update on Preventing Illegal Working

Under the Immigration, Asylum and Nationality Act 2006, offences may be committed where an individual is employed without the relevant permission to work in the United Kingdom.

A civil penalty may be imposed if an employer negligently employs someone without the right to undertake the work for which they are employed. Further, a criminal offence will be committed if an employer knowingly employs an individual who does not have the right to undertake the work for which they are employed.

The civil penalty is currently up to £10,000 for each individual who does not have the right to work; this increases to £20,000 for offences committed on or after 16 May 2014.

A new code of practice established will also apply from 16 May 2014, replacing previous, similar guidance. The code sets out factors to be considered when determining the level of civil penalty to apply where an offence has been committed. The code states that a variety of factors will be considered when determining the level of penalty to be applied. The mitigating factors (retained from previous guidance) are the offence being a first offence, the employer proactively reporting suspected illegality, cooperation with any Home Office investigation and the employer having effective document-checking practices in place.

The lists of document combinations which can be used to determine whether an individual has the right to work in the United Kingdom will be updated. Importantly, the requirement to undertake a right to work check every 12 months in respect of individuals with only a temporary right to work have been removed. The checks will be linked only to the expiry of any temporary permission, which is often every two or three years.

An important addition to the code of practice concerns students undertaking work in the United Kingdom. Students usually enter the country under a Tier 4 visa, which will typically allow them to undertake between 10 and 20 hours of work per week during term-time, rising to full-time hours during holidays. The code now states that employers should obtain a copy of the student’s individual timetable to ensure that they are not working in breach of their permission (for example, working full-time hours during term-time).

Whilst the code contains some helpful revisions to ease some of the burden on employers, it is important to remember the level of importance placed upon the document checking process, in order to provide a defence where it is found that a worker has been employed illegally. The code makes extensive comment on the need to check the validity of documents, and to make and retain original copies. Taking these steps provides comprehensive mitigation to any Home Office investigation.