The Home Office was given the power to issue penalty notices against employers of foreign migrants who have no eligibility to work in the UK. This is called civil penalty which was introduced by the Immigration, Asylum and Nationality Act 2006 (IANA 2006). This is mainly specified in Section 15 of the Act.
An employer has the duty to prevent illegal working to ensure he only employs people who are allowed to work for him. He has a responsibility to conduct right to work checks before an employee begins work, and follow-up checks in cases where an employee’s permission to be in the UK and work is time-limited. Properly conducted right to work checks will provide you with a statutory excuse against a liability for a civil penalty in the event that an employee is found to be working illegally,
An employer who knowingly employs illegal migrants commits a criminal offence and this cannot be used as an excuse or alibi and the employer could face a 2-year imprisonment.
A penalised employer can respond to Civil Penalty Compliance Team, PO Box 99, Manchester M90 3WW or email it to CPCTenquiries@homeoffice.gsi.gov.uk or fax it to them on 0870 336 9827.
Section 15(3): The statutory excuse
The act provides a ‘due diligence’ defence whereby the employer will be excused from paying penalty if he can show that he has complied with the requirements to check the employee’s documentation as set out in the code of practice prior to the foreign worker starting his employment.
The burden of proof is on the employer.
An employer cannot use these excuses:
- “My employee was a student when I took him onboard but I did not know he also applied for a part-time work to other company”
- “There is a pending application to the Home Office waiting for the decision.”
The Home Office seems to suggest though that employers can rely on the excuse providing they can show that they used the Employers Checking Service. They are advised to obtain evidence of the submission of an application for further leave to remain.
Section 16: The Objection
There will be a 28 days window for a penalized employer to challenge the notice. He may say that he has done the necessary checks and verifications to his employees right to work and therefore he did not make an offence.
An employer can also challenge the amount of penalty.
Section 17: The Appeal
A penalised employer can appeal to the county court on the grounds that:
- He has not breached section 15;
- Statutory excuse applies;
- The level of penalty is too high.
There will be a hearing where evidence an employer relies on can be checked at the Court.
The material contained in this article is intended to provide a general guide to the subject matter. Readers should not act on the basis of the information without taking professional advice.
About the Author:
Don Magsino MBA is a student of Oxford Brookes University at Post-Graduate Degree in Law in Oxford, England, UK. He is a graduate of Ateneo De Manila University Graduate School of Business. He is a qualified and a practicing Immigration Lawyer in the UK. His mobile phone is 07446888377 / Direct Line: 0207 316 3027 Email is firstname.lastname@example.org. His London office is located at Regus, 239 Kensington High Street, London W8 6SN. He is accredited by the Law Society in England and Wales and regulated by the Office of the Immigration Services Commissioner (OISC) Level 3: highest level in immigration professionals. He has represented clients in the First-tier Tribunal, Immigration Detention Courts and Deportation and Bail Hearings and to the Upper Tribunal and won many difficult cases in immigration law in the United Kingdom.