Immigration compliance is a headache for business of all sizes across all sectors. In the last three months of 2016, the Home Office issued over £11.5million in fines to UK businesses for illegal employment.
Whether you employ one person or one thousand people, under the UK civil penalty regime, you are under a duty to prevent illegal working by ensuring your workers have relevant permissions to work lawfully in the UK. This means conducting effective Right to Work checks on all employees, irrespective of nationality – including British citizens.
A costly risk
Failure to comply with your HR compliance duties can have serious and costly repercussions, both if you knowingly employed an individual without valid permission to work in the UK, or if it was a genuine mistake. On top of a hefty fine of £20,000 per illegal worker, businesses in breach could be ‘named and shamed’ on the Home Office list of offending employers.
They can also face negative publicity and reputational damage, implications for future Home Office applications, disqualification from National Insurance employment allowance for 12 months or even criminal prosecution. And with changes in the UK immigration rules on the horizon in advance of Brexit, employers should prepare to find themselves subject to more onerous compliance duties to support the enforcement of a new immigration system for EU citizens in the UK.
It makes sense to review your HR compliance processes now, to ensure you are meeting your compliance duties, and to put you in a strong position to make any adjustments in response to Brexit policy.
Understanding your HR compliance duties
The law does not explicitly require employers to perform document checks on all new employees. However, to help employers meet their duty to prevent illegal working, the Home Office has issued prescribed steps for employers to carry out effective right to work document checks.
If you are found to have hired an illegal worker unintentionally, and you can show that you followed the prescribed requirements correctly, it is likely you will be able to rely on a ‘statutory defence’ to challenge the civil penalty.
If there is evidence that you knew the employee did not have the right to work, or you have failed to follow the prescribed document checks, you would be facing the full force of Home Office punishment.
There are three parts to the document-checking process:
- Obtain original versions of one or more ‘acceptable’ documents. It is important your right to work process distinguishes between the many different types of permissions individuals have to work in the UK, as these will determine which documents are ‘acceptable’ for the right to work check.
- Check the documents’ validity in the presence of the holder. You have to take all reasonable steps to ascertain the validity of the original documents provided, and make certain that the rightful owner has produced them. It is helpful to work to a checklist to make sure you are covering the mandatory check points – name, expiry dates, etc.
- Make and retain After the documents have been checked and verified, you must keep accurate records and copies of specific pages of the documents that have been sighted, including a record of the date the document was checked. You are required to keep these records for a minimum of two years after employment ends.
Complying with the prescribed document checks is complicated, particularly where you are employing individuals with time-limited permission to work in the UK or limitations on the type of activity they can carry out (such as international students).
Undertaking an audit of your HR processes and systems is an effective method in identifying areas of compliance weakness and ensuring you are operating to the current requirements on you as an employer.
While immigration compliance may not be your number one business concern, it remains a pervasive operational risk. Ignoring the Home Office’s increasing vigilance and proactive enforcement would be a costly – yet avoidable – mistake.
Anne Morris, pictured above, is an immigration lawyer at DavidsonMorris immigration solicitors.