All UK employers are required to prevent illegal working by conducting right to work checks to ensure that their employees have the right to work in the UK.
If an employer is found to have employed an illegal employee and has not conducted valid right to work checks, they could face a civil penalty as well as potential criminal sanctions.
The Home Office argues that illegal working is a significant pull factor for illegal immigration. Therefore, in a measure to deter perilous small boats crossing the English Channel, on 7th August 2023, the Government announced that it intends to raise the maximum civil penalty which is expected to come in to effect in early 2024.
What is the change?
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.
Other sanctions for illegal working.
An employer could receive the maximum sentence of five years’ imprisonment and/or an unlimited fine where an employer knows, or has reasonable cause to believe, they are employing an illegal worker.
The individual who works illegally is also committing a criminal offence, which is punishable through up to six months’ imprisonment and/or a fine. Their earnings may be confiscated under the proceeds of crime provisions.
How to minimise the risks of illegal working?
An employer potentially could rely on the statutory excuse against liability for an illegal working civil penalty by being able to show that they have carried out right to work checks in line with Home Office guidance.
Steps to minimise the risks of being liable for civil penalties include:
- Carrying out periodic right to work checks;
- Training staff involved in completing right to work checks;
- Obtaining specialist immigration and/or employment law advice where right to work queries arise; and
- Act promptly where potential illegal working is identified.
Employers reliant on sponsor licences due to skills shortages in the UK labour market.
During 2023, the Home Office will 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.
In the meantime, employers might want to consider carrying out periodic checks of sponsor licence compliance; and ensure appropriate staff involved in sponsor licence administration receive a comprehensive training program.