What is a Civil Penalty

Employers have a responsibility to prevent illegal working in the UK by ensuring that their employees have the right to work here. For this employers are required to carry out prescribed right to work checks on their employees prior to commencement of their employment.  An employer who does not carry out proper right to work checks before employing someone whose immigration status does not entitle them to undertake the work in question, may be liable for a civil penalty.  A civil penalty is a financial sanction imposed on employers intercepted by the Home Office to be employing workers without the appropriate immigration status.  

Amount of Civil Penalty

Civil Penalties can range from £45000 per worker for first breach to £60000 per worker for repeat breach.   There are also criminal sanctions for employers who employ individuals they know or have reasonable cause to believe are working illegally.  

Mitigation factors in assessing Civil Penalty

Mitigating factors, such as an employer’s cooperation with the Home Office during their visit, employer’s report to the Home office regarding suspicion of illegal working, and the evidence of having conducted the prescribed right to work check may help in the the reduction of penalty by £5000 per mitigation factor.  

Civil Penalties Process  

The Immigration officials visits an employer, most likely unannounced and search the premises and speak with employees. Following the visit – 

1. Referral Notice is issued if suspected illegal working is encountered – The employer is given an opportunity to respond within 9 days.
2. Civil Penalty Notice is issued – If the employer is found liable, they receive a notice detailing the amount of the fine, the reasons for the penalty, how to pay or object and a 28-day deadline to respond.
3. Pay or Challenge: Employers can pay the penalty or challenge the penalty if they believe they are not liable, or they have a statutory excuse (i.e., they conducted proper Right to Work checks), or the penalty amount is incorrect. Whether you decide to pay the penalty or challenge it, you must respond to the Home Office within 28 days. The appeal lies to the County Court.

What can Employers do to avoid Civil Penalty

The actions an employer can take to avoid liability for a civil penalty is called establishing a statutory excuse. A statutory excuse may be continuous or time-limited in relation to a particular employee.  

How can Employers establish a statutory excuse for right to work checks

In order to establish a statutory excuse against a civil penalty, employers must ensure that their employees have the right to work here and do one of the following before the employee commences employment:

1. a manual right to work check (all citizens);
2. a right to work check using Identity Document Validation Technology (IDVT) via the services of an Identity Service Provider (IDSP) (British and Irish citizens only); or
3. a Home Office online right to work check (non-British and non-Irish citizens)
4. conduct follow up checks on employees whose permission to be in the UK is time limited at a reasonable time before their permission expires, 
5. retain all copies of the right to work documents that were checked, which should include information such as when the check was conducted and who conducted it.

Consequences of being issued a civil penalty

The consequences of being handed a civil penalty can be far reaching for employers as it can lead to reputational damage, loss of sponsor licence which in turn can hinder their ability to hire migrant workers.   

How we can Help 

At Karir Solicitors, we have in-depth expertise and a proven track record in assisting clients with their Sponsorship and Compliance matters. Feel free to get in contact with us for any queries relating to Sponsorship and Compliance.