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How to deal with a civil penalty for employing illegal workers: Part 2

Write a written objection

The first stage in dealing with a civil penalty that’s been issued is to write a written objection to the Home Office, this must be done within 28 days of issuance of the civil penalty notice. The objection can be because the employer feels that there is no liability at all, or the employer has a statutory excuse against liability, or the amount of the penalty is too high. The objection should be made on the objection form provided by the Home Office with notification of the civil penalty. It is possible to provide additional supporting documentation and legal representations at this point and it would be extremely wise for any employer to take legal advice on receipt of the civil penalty notice to obtain assistance with preparing the objection.

Did the employee have a right to work?

Points to consider when writing the written objection are whether the employee actually had the right to work. If the employee did have the right to work, then there is no liability on the employer. In some circumstances, a person can have a right to work even if they don’t have a valid document. For example, under 3C Immigration Act 1971, a person who made an application before the expiry of the leave will continue to have leave to remain in the UK until a decision is made on their application. Proper right to work checks in accordance with the Home Office guidance will be required to overturn the Home Office decision for example where a person’s leave has subsequently expired, but the employer was unaware of this.

Is there an employer-employee relationship?

In order for an employer to be subject to a civil penalty notice, there must be an employer/employee relationship. If the person undertaking work at the premises is, in fact, self-employed or employed by someone else, then the civil penalty notice could be overturned.

Why do some work with the Home Office?

If the employer accepts any wrongdoing and has actively co-operated with the Home Office, then the Home Office should apply the reduction in penalty. If this has not been done, then this should be raised in the written objection.

How the appeal process works

Once the objection has been received by the Home Office, the Home Office will make a decision on whether to overturn or amend the civil penalty notice. The Home Office can issue a higher penalty, maintain the same penalty or reduce the penalty following an objection. 

Subsequently, the employer will have 28 days to appeal to the County Court or the Sheriff Court in Scotland.

Once an appeal is lodged, the Home Office will provide disclosure of all relevant materials. Relevant materials will usually include transcripts of interviews conducted and any documents that are referred to in the statement of the case which is usually served with the initial civil penalty notice. It may be that there are records held by the Home Office which would assist the employer in preparation of their case. In this case, an employer can request voluntary disclosure of documents or can seek an order for disclosure under the civil procedure rules (part 31 and practice direction 31A). In the alternative, it is always open to any person whose data The Home Office holds to make a subject access request.

Be wary of knock-on effects!

If, following an appeal, the civil penalty notice is maintained there are likely to be knock-on immigration effects. If the employer is a licence holder under Tier 2, 4 or 5 then the employer’s sponsor licence could be suspended and ultimately revoked. If the employer is subject to immigration control themselves then they may find themselves refused under general grounds of refusal or suitability requirements in any future application.

Expert legal assistance is available at 0207 118 4546 or via email at info@westkin.com

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