Mark Templeton
- Director
Insights | Employment
Fines for breaching Right to Work laws tripled on 13 February 2024: Time to know your Right to Work checks
3 May 2024
From 13 February 2024 the fines employers can receive if found to have employed an illegal worker tripled from:
- £15,000 to £45,000 per illegal worker for a first breach
- £20,000 to £60,000 per illegal worker for a subsequent breach
The risk to any business of receiving a fine for employing illegal workers will be obvious – a fine will cause significant financial hardship and at worst risk a business not being able to continue operating.
Illegal working, Right to Work checks and fines
Illegal working is regarded as one of the primary drivers of illegal immigration and is harmful to both the individuals concerned and the economy generally – individuals without a Right to Work are at greater risk of mistreatment and those employing illegal workers are likely undercutting legitimate businesses by paying below minimum wage. Right to Work checks and the fines for employing illegal workers together form the Government’s legal regime to prevent illegal working.
Employers are placed front and centre of this regime – they must conduct Right to Work checks for every employee to establish they have a Right to Work. If they do not, and are found to have employed an illegal worker, they face significant fines.
If an employer conducts the correct Right to Work check, at the correct time and in the correct manner, if it later transpires an employer has inadvertently employed an illegal worker, by having carried out the Right to Work check the employer has established a defence against any fine.
This article will set out the Government’s regime for preventing illegal working, steps that must be taken for employers to be complaint, the consequences of failing to be compliant and how we can help.
There are four types of Right to Work check:
- The manual check – mostly for British/Irish nationals.
- The Digital Check through an IDSP – the Home Office has approved specific companies to provide digital checks via the use of an app – only for British and Irish nationals who have a valid passport.
- The Home Office’s online Right to Work check – for every non-British/Irish national who has a valid visa or other status that can be verified through the Home Office’s online system.
- The Home Office’s Employers Checking Service – an online service employers use to submit a request to the Home Office to establish a person has a Right to Work when the person has a visa application outstanding with the Home Office and awaiting decision or when the person’s existing visa has expired but they have made an application to extend their status or are appealing a refusal in respect of a visa application.
Employers in the UK obtain protection against a fine if they undertake a Right to Work check and establish every employee has a Right to Work. This must be done for every employee before employment commences, irrespective of the employee’s nationality.
If the initial Right to Work check establishes the employee has a permanent Right to Work, no follow up checks are required. If a Right to Work is established for an individual on a time-limited visa, however, they will only establish a Right to Work for a specific limited period as per the duration of their visa. This check will have been conducted via the Home Office’s online Right to Work check. Follow up checks must be done at the end of the time limited visa period to establish they have a continuing Right to Work. It is at this stage the Employer Checking Service is used and if the Home Office can trace a valid visa application has been made by the individual to extend their visa status the Home Office will confirm to the employer a Right to Work has been established. The Right to Work however is only established for six months and the employer must submit further requests via the Employers Checking Service to continue to establish a Right to Work for as long as a visa application is outstanding. When the individual has been granted new visa status, the employer reverts to the online Right to Work check to establish the period of the new Right to Work status.
As the above summary shows, knowing the specific checks and the correct sequence of checks to undertake at any given time is no easy task for employers as there exist so many different types and stages of immigration status.
There are a few guiding principles, however. Apart from British/Irish nationals and a few very limited exceptions, inspection of manual documents is not permitted to establish a Right to Work. For almost all individuals who are not British/Irish nationals, a Right to Work check has only been properly established when one of the two online checks have been undertaken.
An original visa document will almost never be enough to establish a Right to Work.
The most common visa document an employer will see is the BRP card – a card similar to a driving licence that has the individual’s photograph, personal details and visa status. Inspecting this card does NOT establish a Right to Work.
It is crucial for employers to understand that the Right to Work checks to be conducted are set out in very prescribed terms in Home Office guidance issued specifically to employers, and an employer must have complied in full with the checks required by the guidance to obtain protection against a fine.
Employing Student Visa holders and Sponsored Workers
Certain visa holders also have restrictions on the number of hours they can work per week and types of work they can undertake – in the main these are Student Visa holders and workers sponsored by another employer with a Sponsor Licence as a Skilled Worker who want to undertake supplementary work with a second employer.
Students, depending on their course, are only permitted to work a maximum of 10 or 20-hours during term-time but can work full-time hours outside term-time.
Workers sponsored by another employer as a Skilled Worker can only work 20 hours per week for another employer if they remain in employment with their main employer, are undertaking supplementary employment out with their contracted hours with their main employer and the supplementary employment is in a job that is eligible for a Skilled Worker visa.
Additional evidence must now be obtained in relation to these visa categories to employ them in compliance with their restrictions to obtain protection against a fine.
It is extremely important to emphasise the additional scrutiny required by employers on the Right to Work check results of these visa categories and the additional evidence that needs to be obtained – fines are issued not simply for employing an illegal worker but also for employing a visa holder who has a general Right to Work but is subject to specific restrictions which haven’t been followed by an employer.
Failing to establish a Right to Work – The problems don’t start or end with the fines
Impact on reputation and business operation
Immigration Officials on a business premises is not a good look! If the Home Office has received reports of illegal working at a business or conducted its own enquiries and suspects illegal working, immigration officials can visit business premises unannounced to search the premises and interview all staff and managers. This can result in a business having to close that day and obviously lose trade.
Employers who hold a Sponsor Licence
If a business has a Sponsor Licence and employs Skilled Workers, fines for employing illegal workers can result in their Sponsor Licence being revoked, or at the very least a compliance investigation. A licence being revoked has the consequence that any sponsored workers would have their visas revoked, of course resulting in the loss of employees but also with huge consequences for the individual workers.
Employers who wish to apply for a Sponsor Licence
For businesses that may wish to apply for a Sponsor Licence to recruit Skilled Workers, any fines received previously are of course taken into account when considering if a business should be granted a Sponsor Licence. Even if a business has not received any fine previously, when applying for a licence before deciding, the Home Office can inspect a business to be satisfied it is complying with Right to Work checks.
How can we help?
Right to Work training
At first the different Right to Work checks that must be completed for different employees, understanding the results, obtaining specific evidence etc. can seem complex and overwhelming.
We offer Right to Work training for businesses of every size. After as little as a half-day of training, we are confident we can cover all the essentials and leave a business with the knowledge to conduct the correct checks and establish protection against a fine. Individual cases can also arise that are complex and need specific legal advice, and our immigration team can provide that advice.
Challenging Fines
If the Home Office considers illegal working has occurred it will issue a request to the employer to provide information relevant to the case and whether a Right to Work check was properly conducted. Often requests are issued when in fact the employer has properly established a Right to Work.
We can assess the validity of any request and assist in making representations to the Home Office based on the circumstances. It is possible to successfully challenge potential or issued fines, and we have success in doing so. It is also possible, even if a fine cannot be challenged, to seek reductions in the final amount payable.
The Home Office has repeatedly stated it is increasing its enforcement of illegal working in the UK and recent statistics show it has done so. It seems more crucial than ever that businesses understand the checks so they can recruit with complete confidence and avoid further financial pressures by falling foul of the rules and receiving a fine.
This article was first published in March 2024, and updated in May 2024.
If you’d benefit from advice on dealing with this, contact Mark Templeton.
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