Since 27 January 1997, employers have had a legal duty to check that all new employees are entitled to work in the United Kingdom. This check gives them a defence against conviction or an excuse against payment of a civil penalty if they are later found to have employed an illegal migrant worker.
The checks that employers should make (or have made) to ensure that their employees are entitled to work in the United Kingdom depend on the initial employment date of each individual.
We can provide employers with details of the appropriate checks under UK immigration laws for employees according to the date when they are (or were) recruited.
The UK Border Agency introduced a civil penalty system for employers in February 2008. If UKBA staff carrying out enforcement and compliance visits find that an employer is using illegal migrant workers, they will issue the employer with a notification of potential liability (NOPL). The UKBA's civil penalty compliance team will then consider evidence provided by the visiting officer or team, and will decide whether to issue the employer with a notification of liability (NOL) and a civil penalty of up to £10,000 for each illegal worker.
If UKBA imposes an NOL and civil penalty against an employer found to be using illegal migrant workers, the employer must within 28 days:
- pay the civil penalty in full: or
- ask the civil penalty compliance team for permission to pay the civil penalty in monthly instalments; or
- submit an objection to the civil penalty compliance team against the service of the civil penalty; or
- lodge an appeal against the service of the civil penalty to the County Court.
The size of a civil penalty depends on the type of eligibility checks that the employer has made on its workers, the number of times when UKBA has issued a warning or imposed a civil penalty, and the extent to which the employer has cooperated.
We can assist employers to draft appropriate written submissions to the civil penalty compliance team and/or represent employers at a County Court appeal hearing.
The civil penalty scheme sits alongside the criminal offence of knowingly employing an illegal migrant worker (section 21 of the Immigration, Asylum and Nationality Act 2006). This offence will be used in more serious cases where employers knowingly and deliberately use illegal migrant workers, often for personal financial gain. The offence carries a maximum custodial sentence of two years, and/or an unlimited fine.