The UK Home Office has published its latest Code of Practice on Preventing Illegal Working which sets out how employers can establish a statutory excuse from civil penalties by carrying out the Right to Work checks (including repeat checks for those with a time-limited right to work in the UK). It references the increased civil penalties which apply from 22 January 2024.
If an employer is found to be employing someone who does not have a valid right to work in the UK (an 'illegal worker'), the Home Office may impose a civil penalty where the employer has not carried out the correct Right to Work document checks. The penalties increased from 22 January 2024 from £15,000 per worker for a first breach to £45,000 per worker. Repeat breaches increase from £20,000 per worker to £60,000 per worker. This is the first increase of civil penalties since 2014.
When issuing a penalty, the Home Office has stated in its Code of Practice that they will consider mitigating factors to reduce the penalty issued. These include:
Has the employer actively co-operated with the Home Office?
Active co-operation with the Home Office during an investigation will result in a reduction of potential penalties. The Home Office notes active co-operation includes providing access to premises/records; responding honestly and promptly during enforcement visits; being available during an investigation if required and full and prompt disclosure of evidence. The Home Office will consider this for first and repeat breaches.
Does the employer have effective Right to Work checks in place?
Employers that show they have effective recruitment practices, have evidenced their reporting of any illegal worker(s) and who actively co-operate with the Home Office during any investigation will have their penalty reduced to the minimum level of a warning notice. This only applies where the employer has not been shown to employ illegal workers within the past three years. The Home Office notes that general compliance with preventing illegal worker employment can be evidenced by having in place effective checking practices, robust document checking systems; thorough and consistent right-to-work checking processes; keeping records of staff right-to-work checks; and a history of compliance with sponsor requirements, where they are sponsoring overseas workers.
As a recent High Court case demonstrates, employers with certificates of sponsorship must also ensure they comply with the strict conditions of sponsorship in order to retain their right to recruit overseas workers.
The checks that employers must undertake to secure the statutory excuse against a penalty for employing illegal workers are to:
- Obtain the employee's original documents as prescribed in the Home Office guidance or check the applicant's right to work online using the share code provided by the employee. Where a manual document check is being undertaken employers should be satisfied that the documents relate to the individual and are original and unaltered. Where an online check is being undertaken the employer should use the share code and the employee's date of birth to access the employer section of the online right to work check.
- Check (in the presence of the prospective employee, either in person or via live video link) that the employee has the right to work by performing a manual document check or an online right to work check.
- Copy the documents which have been manually checked and record the date of the check and date for follow-up checks and retain copies of the documents securely (this can be a hardcopy or a scanned copy in a format which cannot be manually altered, such as a JPEG or a PDF file). For online checks, the profile page, which includes the individual’s photograph and date on which the check was conducted, must be retained (this can be printed and saved as a hardcopy or saved as a PDF or HTML file).
Our fact sheet guidance on ‘preventing illegal working’ in the employment section of the FSB Legal and Business Hubs provides further guidance on the relevant checks to carry out.
Landlords and letting agents in England must carry out right to rent checks on people before entering into a tenancy agreement with them to make sure they are allowed to rent. Landlords do not need to check a tenant’s right to rent property in Wales, Scotland or Northern Ireland. For landlords (including letting agents) in England, the civil penalty for renting to an individual without appropriate immigration permission increased on 22 January 2024 to £5,000 per lodger and £10,000 per occupier for a first breach, with repeat breaches set at £10,000 per lodger and £20,000 per occupier.
In order to establish a statutory excuse against a civil penalty in the event the landlord is found to be renting to someone without the required immigration status, landlords must do one of the following before commencing a tenancy:
- A manual right to rent check (all citizens);
- A right to rent check using Identity Document Validation Technology (IDVT) via the services of an Identity Service Provider (IDSP) (British and Irish citizens only);
- A Home Office online right to rent check (non-British and non-Irish Citizens).
Increasingly, the Home Office is issuing eVisas rather than issuing physical documents as proof of an individual’s immigration status. This means those individuals will only be able to evidence their right to rent using the Home Office online service.
Successfully completing and retaining evidence of the above checks will mean the employer or landlord will have a ‘statutory excuse’ that demonstrates that they have conducted a Right to Work or Right to Rent check. Having a valid statutory excuse will mean that the employer or landlord avoids liability for payment of a civil penalty in the event it transpires the individual does not have appropriate UK immigration permission.