The Insolvency Service, which reports on the latest company directors to be disqualified for a range of misdemeanours, often includes examples of bans that have been handed down to company owners for employing illegal workers. Directors of a vehicle valet company, restaurants and a clothing company have been disqualified in the last couple of months for between five and seven years for this very reason often the result of a winding up petition.
Companies gain an unfair advantage by employing individuals who do not have the right to work in the UK. The UK Border Agency works to bring those who flout employment and immigration laws to justice by removing this advantage and ensuring all UK workers receive the employment rights they are entitled to. What is not always understood is the distress and sleepless nights caused to directors by the use of personal liability notices and security bond requirements.
UKBA’s Illegal workers investigation process
The UK Border Agency (UKBA) has clamped down on the employment of illegal workers by introducing tough new penalties which can result in a maximum fine of £20,000 per employee.
If illegal workers are encountered during a UKBA compliance inspection, as the employer, you will be given the opportunity to show you have complied with the law. To do this, you must demonstrate that you have correctly carried out the necessary right to work document checks, and establish a statutory excuse against liability for a civil penalty.
To establish a statutory excuse against a civil penalty, you must carry out the following BEFORE you employ a worker:
1. Obtain the individual’s original documents
2. Check them in the presence of the holder
3. Make and retain a clear copy of the document
4. Record the date of the check
If the individual is a student and is subject to a condition that limits the number of hours they can work each week during term time, you must also obtain and retain details of their terms and vacation dates.
At this point, UKBA officers will decide whether to issue you with a no action notice or a referral notice. A no action notice informs you that no action will be taken and the case has been closed. A referral notice on the other hand, informs you that your case is being sent to Home Office officials, who are responsible for administering the civil penalty scheme.
A copy of the referral notice along with the evidence gathered in the case will be sent to the Civil Penalty Compliance Team within 14 days of the initial inspection. You will then be sent an information request asking for the relevant evidence and information. You will be asked to confirm:
• Your business’s details
• If you have carried out any document checks on the employees in question
• If you have reported any suspicions about the right to work of the illegal workers
• If you have any supporting documentary evidence
Your response form should be completed and returned, along with any supporting evidence, by the deadline given in the information request. Once the deadline has passed, a decision will then be made as to the penalty you will receive based on the evidence the compliance team hold. If you do not respond to the information request, the decision will be made based on the information the compliance team holds.
The evidence will then be passed on to a case worker, who will determine whether you are liable for a penalty. They will decide on the appropriate action to take by answering the following four questions:
1. Who is the employer?
2. What is the worker’s immigration status and employment start date?
3. Has a breach of section 15 of the Immigration Act 2014 occurred?
4. What is the appropriate penalty level and amount?
There are three possible outcomes to the case worker’s decision. You will either receive a civil penalty notice; a warning notice; or a no action notice. Each notice will include a statement which sets out the evidence and explains why the decision has been made.
To find out the potential penalties you could face, please read part 2 of our guide.