Boardside Immigration Update September 2023

The Ripple Effect of The Channel Crossings for UK Businesses

by Nadine Marston, Partner

We are all too familiar with immigration stories hitting the news headlines, from boats packed with asylum seekers risking Channel crossings, to the images of the floating barge in Dorset which was set to house up to 500 immigrants.  It is a concern for many, for a variety of different reasons.  Of course, it was a major feature of the whole Brexit debate.

Last month, as part of its campaign to reduce illegal migration into the UK, the Government announced new rules whereby there will be a sharp increase in the penalties which can be imposed on businesses which are found to be employing illegal workers.  Indeed, from the start of 2024, fines are set to triple in size.  Employers will risk a civil penalty of up to £45,000 (previously £15,000) for a first breach of the UK’s illegal working laws, and up to £60,000 for repeat breaches (previously £20,000).   This comes alongside dramatically increased fines for landlords who are found to be renting accommodation to illegal migrants (from £1,000 per occupier to £10,000 per occupier, in respect of a first breach, and up to £20,000 per illegal immigrant in respect of repeat breaches). 

Since 2018, the Government has issued more than 4,000 civil penalties to employers who have employed illegal workers, resulting in revenue of more than £74 million.    

Writing for The Telegraph, the Immigration Minister, Robert Jenrick, stated that the practice of illegal working and renting is fuelling the practice of people smuggling, and that the new rules seek to combat this: “Making it harder for illegal migrants to work and operate in the UK is vital to deterring dangerous, unnecessary small boat crossings….There is no excuse for not conducting the appropriate checks and those in breach will now face significantly tougher penalties” (Article by Robert Jenrick in The Telegraph on 6 August 2023).

The Importance of Right to Work Checks

UK employers operate under a duty to prevent illegal working by carrying out right to work check on all prospective employees.  An employer found to be employing an illegal worker will have a defence if it can show that the correct right to work checks had been undertaken.

Employers must be vigilant.  The Home Office may undertake “spot checks” at any time, arriving at premises unannounced, to undertake checks of right to work documentation.  It is therefore crucial that employers have effective right to work checks and procedures in place, so as to provide a defence in the event that an illegal worker is discovered. 

In addition to increased fines, breaches of the right to work rules can result in the downgrading or removal of a sponsorship licence and lead to reputational damage.

Boardside’s top tips:

• Consider your processes for onboarding new employees: 
  • Who?   Check documentation in relation to all employees, regardless of nationality.  Be careful not to discriminate.
  • When?  At what point in the onboarding process do you request documentation?  Again, be careful not to discriminate – have the same process for all employees.  It may be necessary to timetable a follow up check in relation to employees who have time-limited permission to remain in the UK.
  • How?  Depending on the circumstances of each individual, there are three different types of check that may be possible (a manual check, an online check, or the Employer Checking Service).  Ensure that the details are consistent with your employee, and retain a copy of the documentation (online or hard copy).
  • What?  Familiarise yourself with the list of acceptable documents which has been published by the Home Office.
  • Why?  Explain to colleagues why it is essential to follow the process, and the sanctions for not doing do.   
• Communication is vital.  Make sure that all relevant personnel within your business are aware of the rules and the consequences for non-compliance.
• For larger businesses, engage with different departments and with individual employees to generate a general understanding.
• Be aware of your responsibilities if you are a sponsor of skilled workers.  There are specific rules in relation to reporting and record keeping which apply, and it is essential to ensure that you have a means of tracking when each sponsored worker’s visa (or Biometric Residence Permit) expires. 
• Now is a good time to review your processes and policies.  Having a specific “Right to Work Policy” can provide clarification and understanding for everyone.

For Immigration and Employment Law support contact Nadine at nmarston@boardside.co.uk