How to avoid illegal workers and penalties

21st April 2010, 12:44pm

All employers must ensure that workers they employ have appropriate immigration authority. If not, the government can assess a civil penalty of up to £10,000 per illegal worker and, in more serious cases, bring a criminal case against the employer. Scott James explains the law…

An Ounce of Prevention - The Statutory Excuse
A key part of the civil penalty system is the "statutory excuse," which provides immunity from civil penalties. An employer is entitled to the benefit of the "statutory excuse" in respect of an illegal worker only if the employer has conducted timely, appropriate and satisfactory "right-to-work" document checks on the worker.

If, for some reason, a worker is found not to have appropriate immigration status, an employer entitled to assert the "statutory excuse" can use it to avoid punishment for this illegal employment so long as the employer did not know of the illegality.

In this context, "timely" means the employee's documents were inspected before the employee started work, preferably before the day that work commenced. "Timely" can also mean that employees whose immigration status is limited are subjected to a follow-up document check at least every 12 months during their employment.

A full check on an employee's "right-to-work" documents requires an employer to carefully review, approve and retain copies of specified documents to show both that the employee is legally in the UK and has immigration authority to work for the employer. A cautious employer will ensure that it has evidence that the document checks were carried out at the right time.

The UK Border Agency does not expect employers to become immigration document specialists, but they do expect vigilance. Employers are responsible for spotting documents where the falsity is "reasonably apparent" upon a careful inspection. A guide to right-to-work documents can be found on the Agency's website.

In order to avoid civil penalties an employer must have in place a system for checking "right-to-work" documents of all employees and to have staff operating that system who are adequately trained to know what to look for and do so diligently and in a timely fashion. Employers who understand and operate this process correctly will never have to learn more about civil penalties.

Civil Penalties - When the Right-to-Work Document Checks Fail
If an employer is found to have employed a foreign worker illegally and does not have the benefit of the statutory excuse, the employer can be liable to a civil penalty. UKBA first notifies the employer that it faces a potential liability for a civil penalty.

Later, UKBA determines whether to issue a civil penalty notice and, if so, the amount of the penalty, which can be up to £10,000 per illegally employed worker.

The factors that will affect these decisions are published on UKBA's website in flow charts and case scenarios to give employers a level of reasonable expectation of the probability and amount of penalties that are likely to be assessed in any particular situation.

If UKBA issues the penalty notice, the employer can do one of three things:

(1) pay the penalty
(2) object to the penalty and, if necessary, later appeal to the courts
(3) appeal directly to the courts without going through the objection process.

In each case, the action must be taken within 28 days. An objection acts as a request for UKBA to re-consider its decisions related to the penalty assessment. An objection must be in writing and set out clear reasons for contesting the assessment, the amount of the penalty, or both. Unusually, one result of an objection is that the penalty can be increased by UKBA. An appeal is filed with the county court, or the sheriff in Scotland, that has geographic responsibility over the location of the employer's principal place of business.

The civil penalty system is intended to address problems of illegal working resulting from employers' inadequate or poorly executed recruitment and employment procedures. But a civil penalty is not the only sanction available in UKBA's arsenal. Others include recommending criminal prosecution – more likely when the employer knowingly employs a worker illegally, and down-grading or cancelling the UKBA license of an employer who is registered as a sponsor. With care and attention to detail, employers can avoid any of these sanctions by ensuring that they have a "statutory excuse" available for every worker.

Scott James is an American lawyer with Faegre & Benson, a major American law firm. Scott has been practicing in Faegre's London office for over 20 years. He regularly advises companies on commercial law aspects of doing business, including UK and US business immigration law, and writes and gives talks on the new UK points-based system for immigration.

Related Articles:

• 22 Oct 2010 - ASIAN AND ORIENTAL RESTAURANTS CAN TACKLE IMMIGRATION CAP WITH NEW APPRENTICESHIPS
• 21 Apr 2010 - Family-run Chinese restaurant workers jailed for total of 20 years
• 09 Mar 2010 - Restaurant staff from Waterlooville arrested for illegal working
• 26 Jan 2010 - Bedford restaurant faces another illegal employer fine
• 20 Jan 2010 - Restaurant forced to close as staff are arrested
• 05 Nov 2009 - Noodle bar restaurant caught employing five illegal workers
• 05 Oct 2009 - Restaurant faces £50k penalty after being fined for the same offence
• 02 Oct 2009 - Suffolk restaurant faces hefty fine for employing illegal workers
• 06 Aug 2009 - High-street restaurant chains in illegal workers swoop
• 05 Aug 2009 - Illegal workers found in Cumbrian restaurant

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