09 Feb Further announcement on preventing illegal employment
Back in August 2023, the UK Government announced that the fines for illegal employment would be massively increased, with a specific commencement date yet to be provided but expected to come into force in early 2024. [our past article link here]. Now that the implementation dates have been announced, this will be reflected in the new civil penalty regime.
On 23 January 2024, The Immigration (Employment of Adults Subject to Immigration Control) (Maximum Penalty) (Amendment) Order 2024 was made and came into force in accordance with 1(2), which states:
“This Order comes into force on 22nd January 2024 or, if later, on the twenty-first day after the day on which it is made.”
Therefore, the order will be effective from 13 February 2024.
The order mentioned that the maximum fine for a repeat offender increases to £60,000, replacing the previous fine of £20,000.
A new Code of practice on preventing illegal working was published on 23 January 2024, which will come into force on 13 February 2024, replacing the current Code of Practice issued in March 2022 (which has been in force since 6 April 2022).
The changes in the new code summarized as below:
- Some individuals with an outstanding, in-time application for permission to stay in the UK, or an appeal, or administrative review (3C leave) can prove their right to work using the Home Office online checking service
- Changes to an overview of how the civil penalty is administered to simplify and streamline
the code
On page 16, section 3 of the code, the administration steps once a breach in the scheme is discovered when an employer has illegal employment:
- Referral Notice
The Referral Notice will inform the employer about how their case will be considered and the possible decision outcomes. Additionally, it will specify the date on which the breach was identified.
- Information Request
The Home Office will contact the employer with an Information Request, providing them with the opportunity to present further information and evidence of a statutory excuse. This additional information will inform the decision on liability. If the employer responds to the Information Request within the requested 10 days, it will be considered as active cooperation with the process. This cooperation could potentially result in the level of the penalty being reduced.
- Decision
The Home Office will assess all available evidence to determine if the employer is liable for a civil penalty. If the employer is deemed liable, they will receive a Civil Penalty Notice detailing the reasons for the Home Office’s decision, the penalty amount, payment methods, and instructions for objecting to the penalty. Additionally, a Statement of Case will accompany the notice, outlining the evidence and reasons behind the decision.
In cases where the company is in breach for the first time but has actively cooperated with the Home Office and reported suspected workers, the Home Office may issue a Warning Notice instead of a civil penalty. This notice will explain why a civil penalty is not being imposed at that time.
If an employer is not found liable for a civil penalty, they will receive a No Action Notice indicating that no further action will be taken under the scheme, and the case will be closed.
After receiving the civil penalty decision, the employer can choose to pay the penalty, object to it, or appeal against it. If the employer does not pay the penalty in full or by instalments, or object or appeal, by the specified due dates, the penalty will be registered with the civil court, after which enforcement action may be commenced immediately. This action may have an adverse impact
- Changes to determining liability and calculating the penalty amount, including the increase to the maximum civil penalty for non-compliance. The civil penalty for employers will increase to a maximum £45,000 per illegal worker for a first breach of the Scheme up from £15,000, and a maximum £60,000 per illegal worker for repeat breaches up from £20,000.
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