Civil Penalties for Illegal Working: How they work and how to protect your business

The civil penalty regime introduced by section 15 of the Immigration, Asylum and Nationality Act 2006 on 29 February 2008 is one of a range of sanctions that can be imposed in relation to illegal employment. Those employers who are not fully conversant with how to successfully establish a statutory excuse against liability to a civil penalty risk paying up to £10,000 per illegal worker employed.

Common problems with establishing the statutory excuse

An employer is able to establish a statutory excuse if it can be shown that the employer complied with the requirements set out in the Immigration (Restrictions on Employment) Order 2007 (as amended).

The procedures to follow are outlined in detail in the Border and Immigration Agency document, Comprehensive guidance for employers on preventing illegal working, which should be read in conjunction with Guidance for employers on the avoidance of unlawful discrimination in employment practice while seeking to prevent illegal working.

Some of the most common mistakes employers make when seeking to establish a statutory excuse include:

Failing to correctly identify whether a worker is an employee (in respect of whom a civil penalty may be applied) or an independent contractor (in respect of whom a civil penalty cannot be applied) Failing to undertake document checks for all employees Failing to undertake document checks prior to (rather than on) the first day of employment Failure to check and keep documents in the prescribed combinations Failure to keep copies of the documents as prescribed (for example not keeping a copy of the cover of passports or both the front and back of Identity Cards for Foreign Nationals) Failing to undertake and document 12 monthly follow up checks for employees holding limited leave to remain Failure to undertake a check with the Employer Checking Service for employees with outstanding immigration applications Failing to scrutinize documents closely enough to detect a reasonably apparent forgery, that the document does not belong to the holder or that the document does not confer entitlement to work as per the requirements of the employment Dealing with civil penalties

If a UK Border Agency visiting officer detects an instance of illegal employment, a notification of potential liability (NOPL) is issued to the employer. Following review of the evidence gathered by the visiting officer by the UK Border Agency's civil penalty compliance team a notification of liability...