Blog by Margaret Burton,
A new code of practice has been issued setting out the factors the Home Office will consider when determining whether to impose a civil penalty on employers for hiring illegal workers – and if a penalty is imposed, how much it should be. The new code took effect on 16 May 2014 and every employer should consider whether to change their illegal working processes in light of the new provisions. Small but significant changes to “best practice” are contained in the code.
The code (which has been issued under s.19 of the Immigration, Asylum and Nationality Act 2006, that came into force in February 2008), places no new legal obligations on employers as it is not a statement of law. However, it does update the previous code issued in 2008 and can be used (for example) as evidence in legal proceedings and when the Home Office is deciding on civil penalties. It will apply to all right to work checks (or repeat checks) required to be made on or after 16 May 2014 – and penalty calculations (in respect of any employment which commenced on or after 29 Feb 2008) where the breach occurs on or after 16 May 2014.
In terms of practical considerations, the new provisions will lead to employers needing to reconsider some of their internal compliance procedures and how they conduct right to work checks. Some highlights of the code are set out below and relate to both the document checks themselves – and the penalties for hiring illegal workers.
Remote Checks: Potential employees usually have to be present when right to work checks are made – so, for example, passport photos can be compared to the person standing in front of the checker – but now it is clear that the proposed employee can be “present” via a live video link. Some flexibility can therefore be applied to the checking process, if it does need to be carried out remotely.
Twelve Monthly Checks: The new code confirms that employers are not automatically required to conduct checks every 12 months following the initial right to work check to retain their statutory defence to hiring an illegal worker. A follow-up check will instead be required as specified in the code. Generally, this will be before the employee’s permission to be in the United Kingdom is due to expire so tracking expiry dates will be key in future. Some employers may therefore choose to stop their 12 monthly checks and decrease the administrative burden that this may cause. However, advice should be sought before taking this action as it may still be appropriate for some employers to retain their current procedures – or to ensure appropriate alternative checks are put in place before cancelling those procedures.
Documents acceptable as evidence of the right to work: Employers will probably already be familiar with the lists of documents which they can check to provide a statutory excuse. Most employers ask their prospective employees to produce an original passport – but the lists have always been far more extensive and set out acceptable alternatives. The new code sets out a list A and B which is similar to former lists in many respects, but list B makes it clear that certain document will only provide a time-limited excuse – which in some circumstances is only for 6 months. Checks will have to be carried out again at the appropriate point in time – so not only will those checking documents need to be aware that some documents will only provide a time-limited excuse – but will need to track when the repeat check will need to be carried out.
Students: Employers are also responsible for checking that students seeking any type of employment (even short term employment during the holiday season) are permitted to work for them. The ability of overseas students to work will depend on a number of factors – and the standard document checks set out in lists A and B will still need to be undertaken. However, where these documents indicate that the student only has limited permission to work during their term-times, employers also need to obtain and retain a copy of evidence from a student’s education sponsor, setting out their term and vacation times covering the duration of their period of study in the UK for which they will be employed.
Checks where TUPE applies: There is an extension to the grace period (to 60 days) for conducting right to work checks for employees acquired as a result of TUPE transfers. This is a much more realistic time frame for employers acquiring a new organisation to check the right to work documents of their expanded workforce where the Transfers of Undertaking Regulations apply.
Penalties: Much of the code looks at the penalties for hiring illegal workers and the mitigating factors which will reduce the maximum fine from £20,000 (per illegal worker employed) downwards to £3,500 (if a “fast payment option is used). A number of mitigating factors will apply namely:
- Has the employer employed illegal workers within the previous three years? If this is the case, the starting point for the fine is £20,000 – otherwise it is £15,000 for a first offence;
- To reduce this initial figure (whether £20,000 or £15,000), the Home Office will consider (i) whether there is evidence of reporting suspected illegal workers (ii) whether there is evidence of “active cooperation” with the Home Office if they investigate compliance and (iii) if there is evidence of effective document checks.
In conclusion, for any employer, their continuing focus must be on conducting appropriate right to work checks as set out by the new code, other statutory provisions and Home Office guidance – and setting timely reminders to ensure appropriate follow up checks are conducted. However, the mitigation details set out in the code, act as a reminder of the importance the Home Office places not only on carrying out effective document checks but also on reporting suspected illegal workers and cooperating fully with the Home Office regarding their compliance investigations.
To find out more about UK and Global immigration attend the Expatriate Management and Global Mobility conference taking place on the 8th July.