If you are an employer in the UK, whether you employ one person or thousands of workers; whether you are in the private or public sector; you must ensure that your employees have the right to work. If you fail to do so and are found to be employing a person illegally, you may face a penalty of up to £10,000 for each worker employed illegally or prosecution with an unlimited fine and up to 2 years imprisonment if you knowingly employ someone illegally.
Against the wider political background of wanting to appear tough on immigration, the Government has published a consultation document(closing 20th August 2013) in which it proposes to double the penalty for employing an illegal worker to £20,000 during 2014. In addition, consideration is being given to introducing a provision which would allow a civil penalty to be issued against both the business and, where the business has limited liability, its directors or partners, on a joint and several basis. In the event that a civil penalty was not paid by the business, the Home Office may look to pursue the debt against the director or partner personally. The Home Office has stated that in all cases it would first seek to recover the penalty from the business and, only if this were unsuccessful, would directors or partners be pursued on a personal basis. The stated aim is to reduce the instances of companies dissolving and restarting as a means of avoiding liability to pay the penalty and the document includes figures intended to indicate the scale of the unpaid penalties as a result of this practice. However, the link between the two factors is imprecise and is a significant liability for people to assume for the sins of a tiny minatory or employers.
As a quid pro quo for this tougher approach, the consultation document proposes simplifying the process of checking entitlement to work by removing the requirement for annual checks on employees with time-limited status in order to maintain a “statutory excuse”. Instead, an employer would be required to conduct a follow-up check to coincide with the expected expiry of their employee’s permission to be in the UK. Whilst this is welcome, it is not entirely philanthropic. An annual check gives an employer a statutory excuse which lasts for 12 months, even if an employee only has, for example, 2 months unexpired permission to be in the UK. As the Home Office recognise in their consultation paper, in this scenario, the employee could work for an additional 10 months without risk of sanction for the employer. So whilst benefitting the employer, the change is also likely to benefit the Home Office.
There is also a proposal to simplify the process of document checking by responding to complaints from employers about the number of potential documents they may be presented with making them difficult and time consuming to make perform. The solution presented by the Home Office is the Biometric Residence Permit (BRP). The BRP is a credit card sized immigration document (originally intended by the previous Government as a forerunner to a National Identity Card) containing the holder’s facial image, biographic data, immigration status, entitlements or restrictions. Around a million of these documents have been issued since 2008 and the intention for the future is to issue them to all non-EEA nationals coming to the UK for over 6 months. Whilst this is a welcome development, it will not unfortunately address the difficulties associated with confirming the entitlement to work of the millions of other applicants claiming to be British Citizens without passports; EU nationals holding some of the less familiar documents; or others who claim to have been here before BRPs were introduced.
So overall the not unusual mix of stick and carrot but worth reading and responding even if it only means getting something which vaguely resembles a carrot at the end of the day.
About the author
Don Ingham is the Director of www.hrimmigration.co.uk which specialises in working with companies to ensure immigration compliance.
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