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Employers in the UK are under a legal duty to check that every employee has a right to work. You must undertake a full “right to work” check before an employee starts working for you.
You must obtain proof of specific identity documents as listed by the Home Office in their published guidance that will confirm their legal right to work in the UK. Obtaining the correct documents and keeping copies in the prescribed format should give you a ‘statutory excuse’(defence) against a Civil Penalty or defence in a Criminal Prosecution, if the Home Office later alleges the worker does not have a right to work. If you do not obtain the exact documents listed, you will not have a “statutory excuse” or defence for employing that worker.
You must check the documents in the presence of the potential employee before they start working for you.
You must make a clear copy of each document in a format which cannot be altered and retain this copy securely for not less than two years after the employment has come to an end.
If the person has permission to be in the UK with a right to work for a limited period of time, you must carry out additional checks when that permission is set to expire to ensure you can continue to employ them legally.
You can avoid receiving a costly financial penalty by conducting appropriate right to work checks. If you have carried out suitable document checks, you should have a ‘statutory excuse’ and should not be liable for a civil penalty.
Penalties for Employing Illegal Workers
If you are found to have employed a worker illegally, you may be liable for a Civil Penalty or subject to Criminal Prosecution.
Civil Penalties for employers caught employing an illegal worker can include the following:
• First offence £15,000 fine per illegal worker• Subsequent offence £20,000 fine per illegal worker• Revocation of Sponsor Licence meaning end of employment for all sponsored workers• Loss of Liquor Licence• Disqualification from becoming a company director for 6 years
If subject to a Criminal Prosecution in a Sheriff Court on conviction a Sheriff can impose a 6 month prison sentence, a fine of up to £5000 or both.
Receiving a Civil Penalty
If your business premises have been visited by Immigration Officers in a “Home Office Raid” and they suspect you have employed illegal workers, the next stage is you will receive what is known as a “Civil Penalty Notice” This Notice will set out how many illegal workers you are alleged to have employed and state the amount you have been fined.
You have 28 days to reply to the Notice setting out your explanation in respect of the allegations and this can include setting out your full or partial defence to the allegations in the Notice, and if you accept you do not have a full or only a partial defence, setting out representations in respect of the amount of the fine you should be liable to pay.
The Home Office will then respond with a final decision and specify the number of days for payment of the fine imposed. If you as the employer do not accept the decision or the amount of the penalty, you can appeal the decision in your local Sheriff Court. This appeal must be lodged with the Sheriff Court within 28 days of receipt of the Home Office's final decision.
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