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Illegal Workers – the Importance of Getting it Right

Illegal Workers – the Importance of Getting it Right

The UK government announced in October that it was back-tracking on its plan to force businesses to draw up lists of foreign workers and publish them, which is a significant U-turn for the government.

Elsewhere, the government has followed through on its promise to get tough on illegal workers by bringing in a whole raft of new measures this summer. These will sit alongside the existing civil penalty regime for unknowingly employing an illegal worker.

So what’s new?

  1. The government has created the new post of Director or Labour Market Enforcement to co-ordinate enforcement efforts and prepare a strategy for doing this.
  2. It is now considerably easier for the authorities to prosecute employers who employ illegal workers. Prior to this summer there had only been a handful of successful criminal prosecutions of employers. This was largely due to the need to prove that the employer had ‘knowingly’ employed someone who did not have the right to work in the UK. This degree of knowledge was (and still is) difficult to prove in practice.
    However, the scope of the criminal offence has now been made much wider so that employers who are found to have employed an individual when they have ‘reasonable cause to believe’ that he/she is an illegal worker will now commit an offence as well. This is clearly mush easier to prove.
  3. In tandem with widening the offence, the government has increased the punishment for it from two years’ imprisonment to five years.
  4. The government has introduced a new criminal offence of working illegally. If an individual is subject to immigration controls and he/she (a) works when they are “disqualified” from doing working (because they do not have the correct permission to do that work) and (b) know or have reasonable cause to believe that they are “disqualified”, then they will have committed an offence. Working, includes any work as an employee, worker, apprentice or on a self-employed basis. An individual may face up to six months’ imprisonment and/or an unlimited fine if they are convicted. They may also have their earnings seized under the Proceeds of Crime Act.
  5. When the relevant provisions are brought into force, Chief Immigration Officers will have increased powers so that they can shut down a business they suspect of employing illegal workers for up to 48 hours. An employer will be able to cancel a “closure” if it can demonstrate that it has conducted proper ‘right to work checks’. However, it is clear that this power may have significant operational and reputational repercussions for businesses.

What should you do?

  • Ensure that you have stringent procedures in place to prevent illegal working. This will include properly carrying out document checks for all new employees. Remember, if you do this, you will be able to rely on the “statutory excuse” so as to avoid liability for a civil penalty if you unknowingly employ an illegal worker. In the future, you will also be able to cancel a business closure if you can demonstrate that you have carried out proper checks.
  • Have clear procedures for individuals to report any potential illegal working within your organisation.
  • Keep track of your employees’ rights to work. If one of your employee’s permission to work expires and you do nothing about it, you may be exposed to criminal and civil action being taken against you.
  • If you become aware of an illegal worker within your organisation, take action promptly in order to minimise your risk of committing a criminal offence.

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