Employee Vetting And Advice

FURTHER DETAILS

Reducing the risk of illegal-working penalties

All UK employers must check that an individual has the right to work before their employment begins. Where a worker has time-limited immigration permission, the employer may also need to conduct a follow-up check before that permission expires.

The Home Office may investigate an employer’s right-to-work procedures during a compliance visit, following an intelligence report or after identifying a worker who may be working unlawfully. Weak or inconsistent procedures can expose a business to substantial financial penalties, reputational damage and, where the organisation holds a sponsor licence, compliance action against that licence.

Civil penalties for employing illegal workers

An employer found liable for employing someone without the required permission may face a civil penalty of up to £45,000 per illegal worker for a first breach and up to £60,000 per worker for a repeat breach.

Further consequences may include the publication of the employer’s details, disruption to the business, increased Home Office scrutiny and difficulties obtaining or retaining a sponsor licence. In serious cases involving an employer who knew, or had reasonable cause to believe, that a person was working illegally, criminal prosecution may also be possible.

Establishing a statutory excuse

An employer may be protected from a civil penalty by establishing a statutory excuse. This will normally require the employer to demonstrate that the prescribed right-to-work check was completed correctly and at the appropriate time.

Depending on the worker’s circumstances, this may involve:

• conducting a Home Office online right-to-work check using the worker’s share code;
• using an approved identity service provider where permitted;
• completing and retaining evidence of a compliant manual document check; or
• obtaining a Positive Verification Notice through the Employer Checking Service.

It is not enough simply to obtain a copy of a passport, visa or immigration document. The check must be completed in the prescribed manner, the employer must confirm that the person presenting the evidence is its rightful holder, and an appropriate record must be retained.

Building a compliant employee-vetting process

Employers should use a consistent onboarding system, record the type and date of each check, identify workers who require follow-up checks and restrict access to sensitive immigration information. HR, recruitment and management staff should also receive appropriate training.

The process should be applied consistently to all prospective employees. Making assumptions about a person’s right to work based on their nationality, accent, name or appearance can expose the employer to allegations of unlawful discrimination.

How Westkin can assist

Westkin’s business immigration lawyers can help employers:

• audit employee files and existing right-to-work records;
• develop compliant onboarding and follow-up checking procedures;
• advise on workers with complex or uncertain immigration status;
• prepare for a Home Office compliance visit;
• respond to requests for information from Immigration Enforcement; and
• object to or appeal an illegal-working civil penalty where there are grounds to challenge it.