The Home Office can issue fines to businesses of up to £20,000 for each illegal worker.
But what if the Home Office has got it wrong? Immigration solicitor Anne Morris explains why it can pay to question fines for illegal employment.
Under current UK immigration rules, businesses are to all intents and purposes required to act as front-line enforcement in the prevention of illegal working.
Employers have a legal duty to carry out document checks on all employees, confirming their right to work in the UK. If the Home Office alleges your business has failed to perform these checks properly, they can issue a civil penalty for illegal employment for up to £20,000 per illegal worker.
Businesses failing to meet these duties are keeping Home Office coffers buoyant, with immigration fines providing a lucrative income stream. In the last quarter of 2017, over £11.5million in fines were issued to UK businesses for illegal working.
Transportation remains a sector of focus for immigration enforcement due in large part to the numbers of foreign workers: 235k are EU nationals, 407k are non-EUs against 2,130k UK nationals.
Regardless of how many foreign workers your business employs, you are still required to meet the legislation by conducting checks on all new recruits, without discrimination.
Immigration: a costly business risk
The reality however is that transport businesses face a number of challenges in remaining compliant.
For larger companies, conducting right to work checks consistently and correctly across all sites is extremely challenging.
At the other end of the scale, awareness among smaller companies of their immigration duties is generally low. There may not be the resource to implement an effective system for compliance and to stay up to date with changes in the rules – making them an attractive target for immigration enforcement.
Civil penalties are in most cases issued following a site inspection conducted by Home Office officials. Immigration raids are disruptive; the site will be closed, documents will be requested and interviews conducted. They are costly and stressful.
Where enforcement officials allege immigration breaches, fines can be issued.
Many business owners will simply pay the fine without question, concerned about the gravity of the allegations and the tight timeframes involved, and because they are in large part unaware of their rights to challenge the fine.
Challenging a Home Office fine: Questions to ask
If your business is facing a fine for illegal working, you will need to act quickly. Assess the allegations that are being made against your business. If you can prove the Home Office has got it wrong, or have not followed the correct procedures, you may be able to have the fine either reduced or even cancelled.
Your case will need to be looked at on its own facts, but we see a number of common errors being made by the Home Office in its pursuit of fines which are resulting in fines being cancelled.
Insufficient evidence Does the Home Office have sufficient evidence to support their allegations against your business? For example, the Home Office will need to evidence that any illegal workers were in fact employed or contracted by your company.
Officers’ conduct Did the conduct of Home Office officials during the inspection meet the required standards? For example, were any non-English speaking individuals interviewed with a translator present?
Misapplied rules Have the Home Office misapplied or misinterpreted the rules when making their decision to impose a fine? For example, any unlawful arrests of foreign individuals during a raid could amount to racial discrimination.
Unlawful entry Did officials have the relevant and lawful permission and paperwork to come onto your site and to detain suspected illegal immigrants?
Mitigating circumstances Can you demonstrate a consistent approach to immigration compliance, and this breach was an exception? For example, you would not be expected to identify forged I.D. if you can show you took reasonable steps when checking an employee’s documents.
It pays for businesses to look at all of their options if facing a civil penalty for illegal employment. After all, how can employers be held to account for falling foul of the rules where the Home Office is guilty of the same?
Anne Morris is managing director of business immigration solicitors, DavidsonMorris, specialists in all areas of UK immigration including challenging civil penalties for illegal working.