Civil Penalties for employing illegal workers – procedure, objections and appeals

Employers in the UK are required to carry out right to work checks and keep records of immigration status for all their staff. When right to work checks are carried out correctly, employer will have a defence from Civil Penalties. It is therefore vital that employers follow Home Office guidance here on how the checks should be conducted. Prevention is certainly better than cure.

In the below we outline the process, the range of notices that may be sent to an employer and the timeframes for actions that employers are required to take if an illegal worker(s) is/are found.  The law on preventing illegal working is set out in sections 15 to 25 of the Immigration, Asylum and Nationality Act 2006 (the 2006 Act).

It is crucial to follow the prescribed procedures and deadlines and seek legal advice promptly.

Breach of section 15 occurs

The civil penalty process starts when an employer is found, or suspected to be employing illegal workers. At this stage employer will be given the opportunity to provide evidence that the correct right to work checks were carried out to establish statutory excuse against liability for a civil penalty.

Decision of the Home Office can be either of the two: to issue a No Action Notice or a Referral Notice in respect of each illegal worker. A No Action Notice will be issued if Home Office officials that you have clearly established a statutory excuse for an illegal worker.

Referral is made to consider liability for a Civil Penalty

If it is determined that there are illegal workers for whom employer has not established a statutory excuse, employer will be issued with a Referral Notice. A Referral Notice informs that case is being sent to Home Office officials with responsibility for administering the civil penalty scheme, to consider your liability for a civil penalty for breaching section 15 of the Act.

Employer will then be sent an Information Request asking for any further information and evidence which will be taken into account for decision on liability, and, if applicable, the level of penalty.

Employer should complete and return the Response Form, together with any supporting evidence, by the deadline given in the request. Once the deadline has passed, a decision will be made on the basis of the information and evidence gathered.

Depending on the circumstances of each case, consideration may be given to prosecution under section 21 of the Act if you have knowingly employed illegal workers.

Decision is made on liability and the appropriate Decision notice is issued

Questions/What is determined?

  1. Who is the employer? The party potentially liable for a Civil Penalty or Warning Notice.
  2. What is the worker’s immigration status and employment start date? Whether the worker had permission to work and do the work in question and when the employment commenced in order to establish if section 15 of the Act applies.
  3. Has a breach of section 15 occurred? Whether the worker has been found in employment contrary to the Act by working when they do not have permission, or working in breach of their conditions.
  4. What is the penalty level and amount? Whether the formal response to the employer will be a Civil Penalty Notice for a specified amount, a Warning Notice or a No Action Notice.

There are several possible decision outcomes, which will result in employer receiving one of the following notices:

  • A Civil Penalty Notice – If you are liable for a civil penalty for employing one or more of the illegal workers who were identified on your Referral Notice, we will give you a Civil Penalty Notice for a specified amount.
  • A Warning Notice – Your Warning Notice will inform you why you are not liable for a financial penalty on this occasion and for which illegal workers. It will state that this notice is a formal warning, that it will be taken into account if you breach the Act again, and how to ensure you comply in future.
  • A No Action Notice – If you are not liable for a civil penalty because, for example, you have established a statutory excuse for the identified workers, you will be issued with a No Action Notice. Unlike the Warning Notice, this No Action Notice will not be taken into account if you are found employing illegal workers in future.

Pay the civil penalty or submit objection

Employers employing workers who do not have the right to work in the UK can receive a civil penalty of up to £20,000 per worker.

If you receive a Civil Penalty Notice and you want to object, you have 28 days from the date given in your notice to do so. You normally must exercise your objection against a penalty before you appeal to a civil court. You should object using the Objection Form, which you will receive with your Civil Penalty Notice. You should state on which of the specified grounds you are objecting, and provide your reasons and supporting evidence. The form must be sent to the return address in your notice by the deadline given.

If you objected to your penalty before the deadline given in your Civil Penalty Notice, you will continue to be eligible for the fast payment option if you remain liable for a penalty.

If you fail to pay, object (where relevant) or appeal by the deadlines given, we will start enforcement action to recover the penalty debt.

You may object on the grounds that:

  • you are not liable to pay the penalty (this could mean you are not the employer of the illegal worker(s) identified);
  • you have a statutory excuse (this means you carried out document checks as required); and/ or
  • the level of penalty is too high (this means we have miscalculated the amount of your penalty by reference to the wrong scale, or you have evidence that you have met specified mitigating criteria which we have not taken into account).

A caseworker will review the additional evidence supplied with your objection and make the decision that can be one of the following:

  • your civil penalty is cancelled and closed,
  • cancelled and replaced by a formal warning,
  • maintained,
  • reduced, or
  • increased in amount.

You will then receive one of the below listed notices informing you of the outcome of your objection within 28 days of receiving your completed Objection Form:

  • A Warning Notice
  • A new Civil Penalty Notice (where the penalty is increased)
  • An Objection Outcome Notice (Penalty maintained)
  • An Objection Outcome Notice (Penalty reduced)
  • An Objection Outcome Notice (Penalty cancelled)

Appeal against the civil penalty or make payment  

When your objection against a civil penalty has been determined, or you have not been informed of a decision on your objection within 28 days, you may bring an appeal to a civil court. You must lodge your appeal within 28 days from the date given in your notice unless a longer period has been agreed.

You may appeal against your civil penalty to a County Court in England, Wales and Northern Ireland and to the Sheriff Court in Scotland. If you wish to appeal you must do so by the deadline given in your Civil Penalty Notice. You are also required to serve the appeal papers on the Secretary of State for the Home Department.

You may appeal on the grounds that:

  • you are not liable to pay the penalty (this could mean you are not the employer of the illegal worker(s) identified);
  • you have a statutory excuse (this means you carried out document checks as required); and/ or
  • the level of penalty is too high..

Enforcement action may be taken if no payment, enforcement objection or appeal is made on time

Enforcement action may have an adverse impact on your ability to obtain credit in the future and act in the capacity of a director in a company.

 

The information contained in the article reflects legal position on 4th April 2019 and is for general information purposes only and does not aim to be comprehensive or to provide legal advice. We accept no responsibility for loss which may arise from accessing or reliance on information contained in this blog. For formal advice on the current law please do not hesitate to contact Carter Lemon Camerons immigration team. The specialist team at Carter Lemon Camerons Solicitors can assist you with all immigration and business-related matters. Our years of expertise in these areas mean that we can provide tailored solutions for you. For more details, please contact our immigration team at immigration@cartercamerons.com or +44 (0)20 7406 1000.