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The UK has placed a significant emphasis on maintaining a fair and lawful workforce. Working illegally in the UK is seen as one of the reasons for illegal migration – we’ve all heard about false identification documents and papers being offered by unscrupulous gangs who want to exploit vulnerable people and profit from their activities. Illegal working can also have a negative impact on the wages of lawful workers and is linked to other labour market abuse such as tax evasion, breach of the national minimum wage and exploitative working conditions, including modern slavery.

It is a criminal offence to work in the UK without the right to do so. Employers have a key role to play in preventing illegal working in the UK. As an employer, you (and not the members of your staff carrying out the correct checks, whether they are your employees or workers engaged by your business) are liable for any civil penalty that may arise.

Right-to-work checks

Currently as an employer you are tasked with carrying out simple right-to-work checks on people before they are employed, to make sure they are allowed to do the work you are offering them, either on a permanent or temporary basis, and are not disqualified by reason of their immigration status.

But from next year, you will also need to review and ensure that your right-to-work check practices are compliant with new requirements laid out in the new ‘Draft code of practice on preventing illegal working: Right to Work Scheme for employers’. The draft which has been laid before Parliament and is expected to come into force on 22 January 2024, addresses the issue of employers hiring individuals without the legal right-to-work, and how by imposing higher fines and stricter restrictions they hope to deter unlawful employment practices.

Increase in civil penalties

One of the key changes of the New Draft Code of Practice on Preventing Illegal Working is the size of the fines with civil penalties for employers employing workers illegally about to triple. Currently if you employ an individual without the appropriate immigration permission in the UK, the fine is £15,000 per illegal worker for a first breach or £20,000 per illegal worker for repeat breaches, From 22 January, these will rise to £45,000 and £60000, respectively.  As well as a civil penalty, if you are found to have employed an illegal employee and have not conducted valid right to work checks, they might also face potential criminal sanctions.

As well as higher fines, the draft code highlights the importance of thorough and comprehensive right-to-work checks for all employees. Employers are encouraged to be vigilant in verifying the authenticity of documentation and ensuring that they meet the legal requirements.

In addition, the draft also introduces stricter restrictions on employers who are found to have violated right-to-work regulations. This may include limitations on hiring practices, probationary periods for compliance, and increased scrutiny in future hiring processes.

Statutory excuse

An employer who fulfils the statutory requirements with regards to right-to-work checks will have a statutory excuse meaning that they are not liable for a civil penalty under Section 15 (2) of the Immigration, Asylum and Nationality Act 2006. But if you have failed to comply with any of the requirements, civil penalties will result.

The New Draft Code emphasises the Government’s stronger stance against illegal employment practices. Employers must be proactive conduct thorough right-to-work checks on every employee, including British nationals, EU citizens, and non-EEA nationals.

How can I help?

You must check that a job applicant is allowed to work for you in the UK before you employ them or you can use an identity service provider that offers Identity Document Validation Technology (IDVT). For advice, help and support with preventing illegal working, please email caroline.robertson@actifhr.co.uk