THE BLOG

Employ Someone Illegally and You Will Pay the Price

11/06/2014 12:39 BST | Updated 10/08/2014 10:59 BST

Is it just me and the fact that I have my Google alerts set to pick up all immigration-related articles, or is immigration the word on everyone's lips? With the EU election having just past and the UK election being less than 12 months away, immigration will continue to be the buzz word on the political frontline for some time to come.

What is unfortunate is that "immigration" or "migrants" are always lumped into one group. The reality is that we should be looking more closely at the different subsections of "immigration." As an immigration practitioner, we are always trying to encourage the media and the Home Office to ensure that they distinguish between business and commercial immigration routes, which provide skilled labour to enter the UK under a very structured regime and that of a European migrant's right to free movement to enter and work in the UK. It is evident that the government is able to control the former and has done exactly this in its recent raft of legislative changes.

Following the Royal Assent of the Immigration Bill, one of the initial focus areas of the UK government is to ensure that employers are not remiss in their obligations of checking if an individual has a right to work. The government recently introduced an increase to the civil penalty for employing illegal workers from £10,000 per worker to £20,000 per worker. This level of fine applies to employers who have previously been found to have employed illegal workers during the past three years. For employers who have not been found to have employed illegal workers in the last three years, the maximum fine is £15,000.

Fines for employing illegal workers are levied according to a sliding scale so the government will consider mitigating factors, including whether the employer has conducted sufficient right-to-work checks on its employees (checking and keeping records of passports, visas and biometric permits), whether any suspicions of a worker's immigration status were raised with the Home Office previously, and also whether the employer has cooperated fully with the Home Office. In the case of a first offence within three years, it is also possible to reduce the total fine levied by 30 percent if payment is made in a timely manner.

It is crucial that all employers ensure that rigorous HR systems are in place so that suspected illegal workers can be identified at an early enough stage to minimise the likelihood of any penalties from the government. Penalties can include the loss or downgrading of a Tier 2 Sponsor Licence if one is held, and if an employer is found to have knowingly employed an illegal worker, then this becomes a criminal offence, rather than a civil offence, subject to a criminal penalty of up to two years in jail and/or an unlimited fine.

Unfortunately, being complacent or being naïve to these regulations does not help an employer avoid the fine. I'm still surprised to find that I have conversations with employers who confirm that they check that someone has a right to work "unless they are British." For the sake of clarity, all employees, including British citizens and European citizens, must be checked and copies of their right to work documentation kept in accordance with the guidelines. After all, how do you know that someone is British?