Civil Penalty for Illegal Employment
If found to be employing an individual who does not have the right to work then, under section 15 of the Immigration, Asylum and Nationality Act 2006, an employer could face a civil penalty of up to £20,000 per illegal worker.
What is a Civil Penalty Notice?
A civil penalty can be issued by an official visiting a business premises, when an employer is found or suspected to be employing someone who does not have the right to work in the UK. However, in this situation an employer can avoid liability for the civil penalty if the correct right to work check has been carried out before the individual commenced their employment.
If officials determine that the correct right to work checks have not been carried out the employer will be issued with a ‘referral notice’ which means their case will be sent to the Home Office for further consideration. As a result of this process the employer may receive one of the following notices:
- a Civil Penalty Notice;
- a Warning Notice; or
- a No Action Notice.
A Civil Penalty Notice will be issued when the Home Office believe an employer is liable for a civil penalty for employing one or more individuals who do not have the right to work in the UK or who are working in breach of their conditions of stay. The Civil Penalty Notice will outline how much the employer must pay and the date by which it must be paid along with how they can object to the Civil Penalty Notice.
The amount of the civil penalty will depend on whether an employer has been found to be employing workers illegally in the past and the extent to which the employer has co-operated with the Home Office.
What is the impact of a Civil Penalty Notice?
An employer and its employees could both face a number of significant consequences if issued with a Civil Penalty Notice. For example, as well as being liable for a large civil penalty an employer found to be in breach of their duty to prevent illegal working could also face criminal liability under section 21 of the Immigration, Asylum and Nationality Act 2006 and any directors of the company could face disqualification.
Employers who are also licenced sponsors should also be aware of the fact that the Home Office may revoke a sponsor licence and impose a 12 month cooling off period if they are found to be employing an individual illegally. This means that the employer would no longer be able to sponsor any non-EEA nationals and would have to wait at least 12 months before they could reapply for a sponsor licence.
Is there an appeals process?
If an employer does not believe that they should be liable for a civil penalty or that the civil penalty is too high then there is an option to object to the Home Office or appeal to a civil court.
In order to object to a civil penalty an employer will need to complete an objection form and file this with the Home Office within 28 days of receiving the Civil Penalty Notice. An objection can only be made on certain grounds and additional supporting evidence should be submitted alongside the form.
In response to a civil penalty objection an employer may go on to receive:
- a Warning Notice;
- an increase in the amount of penalty due;
- a notification explaining that the civil penalty has been maintained;
- a penalty reduction; or
- notification that the penalty has been cancelled.
Once the objection has been determined, if the civil penalty is maintained an employer has the option to bring an appeal to the County Court within 28 days of the decision.
Civil Penalty for Illegal Employment: How we can help
If you have been issued with a Referral Notice or a Civil Penalty Notice our immigration experts can offer advice and assistance with submitting the necessary information to the Home Office in response to an Information Request or as part of an objection. We can also offer advice as to whether the company is able to establish a statutory excuse.
If you would like to object to a civil penalty or if you would just like to discuss your situation with a member of our team on a no-obligation basis, please contact us.